Thursday, December 12, 2019
Elizabeth D. Katz (Washington University School of Law) has posted to SSRN her recent articles:
'Racial and Religious Democracy': Identity and Equality at Mid-Century, Stanford Law Review (forthcoming). Here is the abstract:
In our current political moment, discrimination against minority racial and religious groups routinely makes headlines. Though some press coverage of these occurrences acknowledges parallels and links between racial and religious prejudices, these intersections remain undertheorized in legal and historical scholarship. Because scholars typically study race and religion separately, they have overlooked the legal significance of how race and religion coexist in both discriminators and victims of prejudice. By contrast, this Article demonstrates that the intersection of racial and religious identities has meaningfully influenced legal and political efforts to achieve equality.
Drawing from extensive archival research, this Article unearths forgotten yet formative connections between racial and religious antidiscrimination efforts, at the local through federal levels, from the 1930s through 1950s. To examine these links, this account centers on the New York City family court, an unusually influential and high-profile trial court. In the 1930s, the NYC family court welcomed the most diverse bench ever assembled in the United States to that date (including women and men, blacks and whites, and Protestants, Catholics, and Jews), a development celebrated as bolstering American democracy and countering Nazi bigotry abroad. Several judges held leadership positions in the National Association for the Advancement of Colored People and the American Jewish Congress, path-breaking civil rights organizations with legal arms headquartered in NYC. The family court served as a testing ground for identity-related legal arguments that later rose to the national level because of its judges’ views and the fact that it merged two antidiscrimination focal points: public institutions’ treatment of children and application of fair employment practices. Longstanding policies required the court to match probation officers to juvenile delinquents by race and religion. By the 1940s, a coalition of black and Jewish judges regarded both types of identity-matching as unlawful discrimination. These judges successfully fought against their white Christian colleagues to end racial-matching, but their challenge to religious-matching proved more politically and legally difficult. What some perceived as religion-based discrimination and a violation of the separation of church and state others understood as legitimate protections for religious identity.
Foreshadowing, connecting, and continuing through canonical Supreme Court Establishment Clause and civil rights cases—such as McCollum v. Board, 333 U.S. 202 (1948) and Brown v. Board, 347 U.S. 483 (1954)—the family court judges and their allies both anticipated and influenced doctrine and norms that remain with us today. This history complicates and raises important questions about ongoing issues ranging from the significance of judges’ racial and religious backgrounds to the scope of religious groups’ involvement in child welfare services and penal contexts. The Article also calls for additional studies that free racial civil rights and First Amendment religion scholarship from their current silos in order to better understand the concurrent development of these crucial and contested areas of law.
Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, 86 U. Chi. L. Rev. 1241 (2019). Here is the abstract:
Each year family courts incarcerate thousands of Americans for nonpayment of child support. The vast majority of these parents are not accorded criminal procedure protections because courts have characterized routine child support enforcement as a “civil” matter. The United States Supreme Court has endorsed this approach. In Turner v Rogers, the Court began from a premise it regarded as both legally significant and unquestionably true: that child support proceedings are civil. On that basis, the Court determined that an indigent father facing a year in jail was not entitled to a public defender. The Court’s analysis reflects a broader and widespread assumption that family law is a civil field. Recent scholarship has challenged that understanding by examining how criminal law and family law work in tandem to police certain conduct. This Article goes further by demonstrating that modern support duties and the family courts that enforce them evolved from criminal laws and courts.
Relying on extensive historical research, this Article argues that child support enforcement is criminal law in a civil guise. Family nonsupport was criminalized around the turn of the twentieth century to permit extradition of offenders. Criminal court judges then tasked newly minted probation officers with reconciling, investigating, and monitoring families — novel state interventions in domestic life. Probation officers, in turn, staffed and promoted specialized criminal nonsupport courts (initially called “domestic relations courts” and later “family courts”) that some cities opened to handle these prosecutions in the 1910s. Beginning in the 1930s, costs and stigma associated with criminal law led legislators to strategically relabel family courts and support enforcement as “civil,” even while retaining procedures, personnel, and powers drawn from the criminal context. Observers found the ongoing use of criminal-derived oversight methods unobjectionable; the decades in which support law was largely criminal law shifted norms about acceptable and desirable state involvement in family relationships. As the number of civil “child support” suits surpassed nonsupport prosecutions (which all states retained) and probation officers disappeared from family litigation, the criminal heritage and continued criminal-law reinforcement of family courts and support laws were obscured.
The calculated and incomplete conversion of family support enforcement from criminal to civil undercuts the supposedly distinct purposes, procedures, and penalties associated with the civil and criminal categories. Building on scholarship that critiques the Supreme Court’s treatment of statutory schemes that blur the civil-criminal divide, the Article draws from child support history to condemn the Court’s strong deference to legislative labels and to propose greater consideration of enforcement methods. If the Court were persuaded to recognize child support incarceration as a criminal sanction, then states would face a difficult choice. They could either allocate the resources needed for constitutionally mandated criminal procedure protections or decriminalize the enforcement machinery — ideally through elimination of most child support incarceration.