Wednesday, October 1, 2014
From the Jurist:
Advocates and opponents of same-sex marriage are breathlessly waiting for news from the Supreme Court that a marriage equality case will be heard this term. The expectation of an imminent nationwide ruling comes after scores of lower courts have declared bans on same-sex marriage unconstitutional, relying heavily on the Supreme Court's reasoning in its landmark 2013 decision, United States v. Windsor. To date only one federal ruling has broken the consensus: the September 2014 decision by Judge Martin Feldman upholding Louisiana's ban.
At this juncture, it is worth asking why Windsor, which declared a section of the Defense of Marriage Act (DOMA) unconstitutional, has made the legal landscape so lopsided toward marriage equality. Appreciating the answer requires us to put to rest the idea that Windsor is actually a federalism decision supporting a state's right to define marriage however it wishes. As I will argue, the near unanimity among recent lower court decisions is not a product of judicial activists licking their chops at the opportunity to impose their political ideology on the nation, but rather a logical consequence of Windsor itself.
Tuesday, September 30, 2014
Gov. Jerry Brown has signed a bill into law that makes California the first in the nation to have a clear definition of when people agree to sex. The law goes further than the common "no means no" standard, which has been blamed for bringing ambiguity into investigations of sexual assault cases.
The new law seeks both to improve how universities handle rape and sexual assault accusations and to clarify the standards, requiring an "affirmative consent" and stating that consent can't be given if someone is asleep or incapacitated by drugs or alcohol.
"Lack of protest or resistance does not mean consent," the law states, "nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time."
Yesterday, the EEOC initiated litigation against two separate employers: two lawsuits alleging sex discrimination "in violation of federal law by firing an employee because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer's gender-based expectations, preferences, or stereotypes."
In one lawsuit, the EEOC claims that a funeral home fired an employee who had been with the company for several years, but two weeks after she wrote a letter to the company explaining that she was "undergoing a gender transition from male to female, and would soon start to present (e.g., dress) in appropriate business attire at work, consistent with her gender identity as a woman."
In the other lawsuit, the EEOC alleges that the employee was fired only after she began to present as a woman and informed her employer that she was transgender.
The White House rolled out a new sexual assault prevention campaign engaging men as part of the solution: It's On Us
What College Men Think of the New Rape Prevention Campaign That's Targeting Them. According to this report, they're ok with it.
Monday, September 29, 2014
Corey Ciocchetti, Denver (Business School), has uploaded to SSRN "Religious Freedom and Closely Held Corporations: The Hobby Lobby Case and Its Ethical Implications." The abstract reads:
Hobby Lobby and its quest for religious freedom captured the attention of a nation for a few moments in late June 2014. The country homed in on the Supreme Court as the justices weighed the rights of an incorporated, profit-making entity run by devout individuals that objected to particular entitlements granted to women under the Affordable Care Act. The case raised important legal issues such as whether the law allows for-profit corporations to exercise religion (yes!) and whether protection for religious freedom trumps the rights of third parties to cost free preventive care (sort of!). The Supreme Court’s decision also brought to light some major ethical dilemmas such as: (1) whether the government has the right to second-guess a person’s religious beliefs, (2) when do religious beliefs become too attenuated from the actions they oppose to truly pose a burden on religion and (3) whether religion can only be experienced by human beings. Though the lawyers will move on to the next legal challenge, Americans in general must continue to grapple with these ethical dilemmas as citizens of a society needing to find the appropriate balance between religious freedom and improving public heath.
This article attempts to answer some of these questions by evaluating the Hobby Lobby case from many different angles. Part II recounts the stories underlying the legal challenge. These stories, often-neglected in law review articles and judicial opinions, when told in depth add context and nuance to the case and help bring to life topics that seem boring if analyzed purely in legalese. For example, the Greens tell a story of a family who consider their work at Hobby Lobby to fulfill their calling from God. They sincerely believe they are expected to practice their religion at work even if it costs the corporation, and themselves personally, a great deal of money. The federal government tells the story of a nation in desperate need of better and less expensive health care options -- particularly for women. The government claims that women need cost-free preventive care (and particularly cost-free contraceptives) in order to improve their health and reduce unwanted pregnancies. Better access to contraceptives will also give women more power to control their reproductive lives and compete more effectively in the workplace. Part II brings these litigants to life and sets the stage for a discussion of the law in Part III and the application of the law to these parties in Part IV.
More specifically, Part III synthesizes the state of the law surrounding religious freedom and preventive health care at the time the Hobby Lobby case hit the Supreme Court. The article recounts the history of religious freedom in America and how this concept worked its way into the first words of the First Amendment and eventually into the very broadly protective Religious Freedom Restoration Act. This part ends with an evaluation of the ACA’s contraceptive mandate and its requirements regarding access to cost free preventive care for women.
Part IV evaluates the court decisions in the Hobby Lobby case. The discussion begins with the District Court’s denial of Hobby Lobby’s request that mandate be stayed and ends with the Supreme Court’s decision issued on the last day of its October 2013 term. All in all, the discussion moves with the case from a federal district court (where Hobby Lobby asked for a preliminary injunction) to the Tenth Circuit Court of appeals (where that decision was affirmed) to the United States Supreme Court (where Hobby Lobby’s appeal was summarily denied) back to the Circuit Court sitting en banc (where the district court was urged to issue the preliminary injunction) back to the district court (where the judge reversed himself and issued the injunction) and finally to the Supreme Court (where Hobby Lobby emerged victorious). This part summarizes the lower court decisions and evaluates the Supreme Court decision in detail, section by section.
Part V, the final substantive part of the article, begins with the statement that the Court reached the correct legal decision in the case considering: (1) the important place religious exercise holds in the fabric of America, today and historically, (2) the broad brush with which Congress painted RFRA and (3) the fact that Hobby Lobby’s employees will still receive all twenty FDA-approved contraceptives at no cost. The discussion then moves to the ethical issues spun off by the Supreme Court decision. The three ethical dilemmas chosen for analysis revolve around the questions of whether corporations can exercise religion, whether it is ethical for religion to trump third party rights and whether governments have any business analyzing the beliefs of a religious adherent in order to better craft public policy.
The article concludes with a call for further research into potential answers to these and other ethical dilemmas keeping in mind that Hobby Lobby is just the first shoe to drop in the fight between religious freedom and parts of the Affordable Care Act.
Sunday, September 28, 2014
We all know this. These days, men often hug other men; even guys who aren't really friends will do this. The Bro Hug, it has come to be known. It has, arguably, overtaken handshakes.
Commentary from the NYT:
[One theory for the B.H.] comes from Mark McCormack, a British sociologist, who has suggested that our increased hugginess is attributable to declining homophobia. In March, Dr. McCormack and his colleague Eric Anderson published in the journal Men and Masculinities a study of 40 college-age male heterosexual British athletes. Ninety-three percent of the young men said that, more than mere hugging, they had spooned or cuddled with a male friend.
One of the study’s participants said of his male friend, Connor: “I happily rest my head on Connor’s shoulder when lying on the couch or hold him in bed. We have a bromance where we are very comfortable around each other.”
That the decreased stigma about being gay may inspire people to be more physically affectionate — particularly heterosexual male athletes, a demographic not known for being cuddlesome — is a lovely thing. As are wanted hugs. But the ripple effect of this new liberation may sometimes prove unmooring.
I suspect there is something deeply regional and class-based about the Bro Hug.....
Saturday, September 27, 2014
Integrating fraternities will reduce campus sexual assault?
Slate, Accept Women--Or Else
All on-campus fraternities at Wesleyan University must soon become coeducational or they will be shut down, the university announced Monday, giving its small but often under-fire Greek system a three-year deadline to open its doors to female students.
“The culture of these houses contributes to the culture of sexual assault in a way we weren’t willing to stand for anymore,” Updegrove said in May. In a blog post in April, Roth wrote that it’s "clear that many students see fraternity houses as spaces where women enter with a different status than in any other building on campus, sometimes with terrible consequences."
We previously posted about the nail polish that can warn of date rape drugs.
Two bartenders in Washington, D.C., have teamed up to create the prototype for a product meant to combat date rape called the “DrinkLock.”
DrinkLock is described as a “reverse coaster,” which can be used as an actual coaster or affixed to the top of someone’s drink using a square adhesive seal. When the seal is removed, it will read “void” if anyone has tampered with it.
The Atlantic, The Economic Case for Paternity Leave
All over the globe, paid maternity leave policies have proven vital in boosting the likelihood that a new mother will return to work, and will put in more hours after she returns. Along with tax reform, these policies powered the surge in Europe’s female labor-force participation in the 1980s and ’90s. The U.S., however, stagnated. Whereas in 1990 the U.S. had the sixth-highest rate of female labor participation in the OECD in 1990, within two decades it had plunged to 17th place. The U.S.’s lack of paid parental leave and flexible work policies were responsible for nearly three-tenths of that drop, according to an oft-cited study by Francine Blau and Lawrence Kahn of Cornell University.
But on its own, paid maternity leave works only up to a point. Even in euro-zone countries and others that have boosted the share of women in the workforce by offering lavish maternity leave and cheap childcare, the gap between male and female labor participation still yawns.
For the vast majority of women who don’t return to work after giving birth, this is because the costs of returning—both financial and psychological—outweigh the benefits.
Thursday, September 25, 2014
Shagufta Omar, International Islamic University, has uploaded to SSRN Marriage in Islam. The abstract reads:
The institution of family occupies a highly important position in Islam. Besides regulating human marital relations it plays a key role in the development and progression of a well-entrenched social order. It considers this relationship a sacrament social contract between two independent and pubescent persons and introduces checks and balances to protect and secure the rights of all stakeholders in this matter - husband, wife, children and the society large. Unlike certain other religions, Islam however does not regard marriage above dissolution and gives this right to both the spouses. According men and women equal social, legal and moral status as human beings, Islam differentiates between their status, roles and responsibilities in the family system, based on equity and justice. However, the true spirit of role differentiation is misunderstood by non Muslims as well as by less informed Muslims as establishing the patriarchal system endorsing gender equality and discrimination against women.
Presenters on US cable channel Fox News cracked a series of sexist jokes after reporting that a female pilot from the UAE had taken part in a bombing mission of Isis targets in Syria, describing her as “boobs on the ground”.
One presenter, Kimberly Guilfoyle, tried to pay tribute to Major Mariam al-Mansouri, 35, one of four UAE fighter pilots to take part in the operation. “Hey, Isis, you were bombed by a woman,” she said. “Very exciting, a woman doing this … I hope that hurt extra bad because in some Arab countries women can’t even drive.”
She continued: “Major Mariam al-Mansouri is who did this. Remarkable, very excited. I wish it was an American pilot. I’ll take a woman doing this any day to them.”
But after the segment, co-host Greg Gutfeld interrupted Guilfoyle, mocking the pilot. “The problem is after she bombed it she couldn’t park it,” he said. Another presenter, Eric Bolling, joined in, asking: “Would that be considered boobs on the ground or no?” The conversation between panellists, which was broadcast on Wednesday, was part of discussion show The Five on Fox News.
Supreme Court Justice Ruth Bader Ginsburg is pushing back against suggestions that she should soon retire, saying President Barack Obama would be unable to get a justice like her through the Senate.
“Who do you think President Obama could appoint at this very day, given the boundaries that we have?” the 81-year-old justice told Elle Magazine in an interview excerpt released Tuesday. The wide-ranging interview portrays Ginsburg — seen as a member of the court’s liberal wing — as attuned to the dynamics in Congress and some of the greater political and social discussions in the U.S.
In the interview, she suggested that Senate Republicans would likely block any potential nominee like her.
“If I resign any time this year, he could not successfully appoint anyone I would like to see in the court,” the oldest member of the high court said. “[A]nybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided,” later adding that she can “do the job full steam.”
Our colleague Colby Itkowitz writes for In the Loop about a new analysis that found out of more than 5,000 witnesses that have come before the 113th Congress, only 23 percent were women.
There has been much hoopla during the last few years about the record number of women in Congress — 102, or 18.8 percent. But that’s still no where near parity with women’s percentage of the U.S. population.
Itkowitz also notes that “… in the House, men are at the helm — they chair all but one of the House’s 20 committees, and the one run by Rep. Candice Miller (R-Mich.) is the House Administration panel, which is basically congressional housekeeping.”
NBA Commissioner Adam Silver said Monday his league will "take a fresh look" at its domestic violence procedures in the wake of the NFL's rash of incidents.
Silver said during a community service event in Staten Island that the league has been discussing with the NBA Players Association ways to further educate players and provide programs to them and their families.
"We learn from other leagues' experiences," Silver said. "We're studying everything that's been happening in the NFL. We're working with our players' association. We've been talking for several weeks and we're going to take a fresh look at everything we do."
Mary Lynch (Albany) has posted Why Don't Males Do the Fair Share of House/Care Work? Theories about Gender Differences Regarding Institutional and Communal Care Work in American Law Schools in Times of Economic Distress.
For many years, it has been fairly well documented that, as a whole, women do more than their equal share of communal "care" – household and parenting – work in households across America even when both partners in a heterosexual couple with children work outside the home. Whether such statistical disparity is a result of cultural expectations, men’s larger share of paid work, or the slow pace of achieving gender equality is debatable. Meanwhile, gendered responses to the global recession and to the contraction of the labor market also present interesting phenomena for American feminists to examine. Some call the recent unemployment crisis in America the "Mancession" because of the types of labor sectors most heavily affected, namely middle class manufacturing jobs. Others argue that American females have been more successful in finding new employment during the global recession because they are more adaptable. Still others warn that as the economy turns around and middle class manufacturing jobs return, women will fare worse in the employment comparisons. Questions needing further examination as the data emerge are: 1) whether female employment will increase, decrease or change as the economy turns around, and 2) whether female adaptation will create more success in employment numbers and compensation.
Equally ripe for study is the gendered face of American legal education, particularly as legal educators are challenged to change and, I posit, to engage in "feminine" behavior: 1) to work communally rather than individually and 2) to adapt and change in a new economy. This "call for change" stems not simply from the 2008 financial crash, and its concomitant loss of legal jobs, but from the spiraling costs of legal education and the restructuring of the legal market. Critiques of American legal education such as those found in the Carnegie Foundation’s Educating Lawyers, the Clinical Legal Education Association’s Best Practices for Legal Education, and Brian Tamahana’s Failing Law Schools all underscore the need for American law school faculties to work in an integrated and communal manner instead of as independent contractor-experts. The question arises whether the need to act in a more holistic, integrated and communal manner will create or exacerbate gendered differences in the legal academy.
I argue that there have been longstanding gender differences, as a whole, in American law faculty members’ willingness to engage in the "care/household" work of law schools, namely in the production of tangible value for the students, alumni and the profession. These differences can be observed in the gender disparity among the "workhorse" administrative positions such as the Dean of Students and/or Academics, and may also exist in the day to day committee work that is the governing structure of the academy. It can also be demonstrated by the gender identity of those who do the "care" work of the institution – the formation of students for real practice (clinicians) and the challenge of teaching students the most fundamental skills needed for American attorneys - legal research and writing (lawyering /legal writing faculty). That does not mean, of course, that all female faculty members are selfless and all male faculty members are self-involved. One finds both types of individuals in both gender types.
However, for American law schools to continue to flourish, they will need individuals who work communally, who know how to adapt and change for the good of the whole, and who place student or institutional needs above individual inclinations and individual goals. As the work of law school Deans becomes more burdensome and less well-compensated, I believe it is more likely we will see an increasing number of women at the helm of law schools. Contrasting with that argument, however, and on a less cynical and more hopeful note, I explore whether the "feminization of law schools" including the modeling of and teaching of adaptability, flexibility and communal problem solving will redeem American legal education and better prepare law students for the new economy.
Wednesday, September 24, 2014
Near my neck of the woods, and from the Miami Herald:
Gay-rights activists prepared for a political skirmish Tuesday at Miami-Dade County Hall. They wore matching T-shirts, arrived early and filled several rows of the commission chambers in support of legislation expanding protections to transgender people.
But no one — in the audience or on the dais — showed up in opposition.
Commissioners gave unanimous — though preliminary — approval toamending the Miami-Dade’s human-rights ordinance to ban discrimination on the base of “gender identity” and “gender expression.” The law applies to public places and government services, as well as to employment and housing in the county as a whole.
A new studey mentioned in the WSJ Blog:
Here’s another sign why too much testosterone at the top might not be good for business.
Research has shown that, by nature or nurture, facial masculinity is associated with a slew of behaviors in men that range from increased aggression to a penchant for risk taking. Some economists decided to see what having a masculine-looking man at the helm of a company might mean.
Yuping Jia at the Frankfurt School of Finance & Management, with Laurence van Lent and Yachang Zeng at Tilburg University, collected pictures of 1,136 male chief executives at companies in the S&P 1500, and used a facial-structure metric to gauge how masculine each one’s face was.
Check out the results.
Tuesday, September 23, 2014
Emily Bazelon, NYT, Mother in Jail for Helping her Daughter have an Abortion
On Sept. 12th, Jennifer Whalen, a 39-year-old mother of three in the rural town of Washingtonville, Pa., went to jail to begin serving a 9-to-18-month sentence. Whalen’s crime was, in effect, ordering pills online that her older daughter took in the first several weeks of an unplanned pregnancy, when she was 16, to induce a miscarriage. The medication was a combination of mifepristone (formerly called RU-486) and misoprostol. The drugs have been available from a doctor with a prescription in the United States since 2000 and are used around the world to induce miscarriage.***
On the night before Whalen went to jail, I drove to Pennsylvania to meet her. We sat at a conference table in the office of her lawyer, who was present for the 90-minute conversation. For most of the time we spent together, she sat hunched forward, arms wrapped around herself. She was dreading the prospect of leaving her 11-year-old daughter and her husband at home, she said, as well as her older daughter, now 19, who still lives with the family. (The oldest child, a 20-year-old son, lives nearby.) “I’m scared,” Whalen said of serving her sentence. “And I’m hurt because I can’t be with my family.”
A New York City family court ruled on Sept. 12 that a Staten Island man could use Facebook to serve his ex-wife with a legal notice about child support. According to the New York Post, Staten Island Support Magistrate Gregory Gliedman noted in his decision that it was the first such decision in New York or the United States in general (excluding situations in which the person being served was overseas).
Speaking before the United Nations on feminism, Emma Watson (of Harry Potter fame) launched the HeforShe campaign encouraging men to support equal gender rights. Read the full speech to the UN. Some excerpts:
This is the first campaign of its kind at the UN: we want to try and galvanize as many men and boys as possible to be advocates for gender equality. And we don’t just want to talk about it, but make sure it is tangible.
I was appointed six months ago and the more I have spoken about feminism the more I have realized that fighting for women’s rights has too often become synonymous with man-hating. If there is one thing I know for certain, it is that this has to stop.
For the record, feminism by definition is: “The belief that men and women should have equal rights and opportunities. It is the theory of the political, economic and social equality of the sexes.”
I started questioning gender-based assumptions when at eight I was confused at being called “bossy,” because I wanted to direct the plays we would put on for our parents—but the boys were not. When at 14 I started being sexualized by certain elements of the press. When at 15 my girlfriends started dropping out of their sports teams because they didn’t want to appear “muscly.” When at 18 my male friends were unable to express their feelings.
I decided I was a feminist and this seemed uncomplicated to me. But my recent research has shown me that feminism has become an unpopular word. Apparently I am among the ranks of women whose expressions are seen as too strong, too aggressive, isolating, anti-men and, unattractive.
Why is the word such an uncomfortable one?
The video is Emma Watson at the UN.