Monday, December 16, 2019
Dara E. Purvis (Penn State) has recently posted two articles to SSRN recently:
Trump, Gender Rebels, and Masculinities, 54 Wake Forest Law Review 423 (2019). Here is the abstract:
Since the inauguration of President Trump, most of his Administration’s actions have been sharply conservative: notably, his efforts to ban transgender Americans from military service. There have been exceptions, however, such as proposals to create support for paid parental leave, an issue previously championed by Democrats.
This seeming contradiction of progressive and regressive policies can be reconciled by viewing the Trump Administration through the lens of masculinities theory. Hegemonic masculinity depends upon sharp differentiation between “real” men and everyone else, the latter occupying places in a hierarchy far below men. In this reading, Trump’s version of parental support makes sense: it focuses support solely on women, who in the view of hegemonic masculinity are the only proper caregivers for children. Similarly, masculinities analysis helps to explain targeting transgender Americans, as this group directly challenges a central tenet of hegemonic masculinity — that gender is binary and immutable.
Masculinities thus explains arguably contradictory policies and reveals that both policies reflect the Trump Administration’s hostility to principles of diversity and antidiscrimination. The Administration is not against antidiscrimination in all forms — only those that challenge the hegemonic ideals of masculinities.
The Constitutionalization of Fatherhood, 69 Cas. W. Res. L. Rev. 541 (2019). Here is the abstract:
Beginning in the 1970s, the Supreme Court heard a series of challenges to family law statutes brought by unwed biological fathers, questioning the constitutionality of laws that treated unwed fathers differently than unwed mothers. The Court’s opinions created a starkly different constitutional status for unwed fathers than for unwed mothers, demanding additional actions and relationships before an unwed father was considered a constitutional father. Although state parentage statutes have progressed beyond their 1970s incarnations, the doctrine created in those family law cases continues to have impact far beyond family law. Transmission of citizenship in the context of immigration law and the inheritance rights of children of unwed parents whose fathers died without a will echo the reasoning of the family law cases, including two unwed father principles giving legal imprimatur to stereotypes about fathers. Across multiple areas of law, therefore, unwed fathers are not constitutional fathers. It is not enough, however, to simply revive past challenges to such statutes: individual criticisms of each line of cases have not prompted reconsideration of the cases purely on their own terms. This paper identifies a new approach, however, using modern precedents to provide a clearer theory of constitutionalizing fathers: Obergefell v. Hodges illustrates a methodology of analyzing claims that involve the unequal application of a fundamental right, and Sessions v. Morales-Santana provides the substantive rejection of gendered parental stereotypes that fills out Obergefell’s framework. The result is an unambiguous argument rooted in the Equal Protection Clause that will constitutionalize fathers across the law.