Gender and the Law Blog

Justice Thomas Breaks 10-Year Silence to Question Federal Ban on Guns in Domestic Violence

CNN, Justice Clarence Thomas Breaks 10-Year Streak

 The question in the case that piqued Thomas's interest Monday, Voisine v. United States: Is a prior domestic assault conviction based upon reckless conduct a "misdemeanor Crime of Domestic Violence" for purposes of the federal firearms ban? The court is expected to release transcripts of the exchange Monday afternoon.

"Everyone leaned in disbelieving," said Slate's Dahlia Lithwick who was in the Court room. "The colloquy went back and forth several times with Thomas pressing the Assistant Solicitor General," Lithwick said. She said there was a tense moment when Thomas pushed Eisenstein to give another example where a misdemeanor conviction suspends a constitutional right.

 Slate, Clarence Thomas Just Asked His First Question in a Decade on the Supreme Court

for 10 years, Justice Clarence Thomas has sat on the bench of the Supreme Court through innumerable oral arguments without asking a single question. That all changed today.

 

On Monday morning, the Supreme Court heard oral arguments in Voisine v. United States, a complex and arcane case involving domestic violence and gun ownership. The case initially seemed to revolve around a technical question of criminal intent. Stephen Voisine was convicted of “intentionally, knowingly, orrecklessly caus[ing] bodily injury or offensive physical contact” to his girlfriend following a domestic dispute. As a result, he was stripped of his ability to own a gun, because United States federal law indefinitely bars individuals convicted of “a misdemeanor crime of domestic violence” from owning firearms. Voisine now argues that “recklessly” causing violence—as opposed to knowingly or intentionally—shouldn’t disqualify him from possessing a gun under federal law.

 

Arguments were somewhat dry until the last few minutes, when Ilana H. Eisenstein, an assistant to the solicitor general representing the federal government, was preparing to finish up and take her seat. Just before she left the lectern, Justice Clarence Thomas spoke up, asking his very first question from the bench in a decade. The entire court perked up. Everyone shifted forward in their seats, and there was a look of shock on many spectators’ faces. We in the press section nearly fell out of our seats, though the other justices kept admirably cool, with only Chief Justice John Roberts swiveling his head in evident surprise.

 

Thomas noted that a conviction under the federal statute in question “suspends a constitutional right”—the right of individuals to own guns, as established in 2008’s decision, District of Columbia v. Heller. The government argues, Thomas explained, that “recklessness” in using physical force against an intimate partner is “sufficient to trigger a misdemeanor violation that results in the suspension of what is at least as of now still a constitutional right.” (Thomas appeared to be extremely aware that Hellerwas a 5–4 decision, authored by Justice Antonin Scalia, which could be on the chopping block if the balance of the court shifts to the left.)

 

The justice, speaking calmly but forcefully, then pointed out that under the federal law, a domestic abuser doesn’t actually have to use a gun against his partner to lose his gun rights. He need only commit some form of domestic abuse, with a firearm or without it. Thomas struck a tone of puzzlement with a tinge of irritation. “Therefore,” he said, “a constitutional right is suspended—even if [the domestic violence] is unrelated to the possession of a gun?”

 

Eisenstein retorted that individuals who have previously battered spouses have an exponentially higher risk of injuring their spouse with a firearm in the future. But Thomas dug in, asking whether any other law indefinitely suspended an individual’s constitutional rights for recklessly committing a crime. What if “a publisher is reckless about the use of children in what could be indecent displays?” he asked. Could the government “suspend this publisher’s right to ever publish again?” Is suspending First Amendment rights substantively different from suspending Second Amendment rights?

 

At that point, Justices Anthony Kennedy and Stephen Breyer jumped in to help Eisenstein. (Kennedy joined Heller but isn’t a Second Amendment absolutist like Thomas; Breyer dissented from Heller.) Kennedy mentioned laws that indefinitely regulate sex offenders’ liberty, though it was a weak example, because those laws do not suspend any fundamental rights absolutely and indefinitely. Breyer veered away from Thomas’ question, noting that Voisine wasn’t directly arguing that the federal law violated his Second Amendment rights. (He had argued that earlier, actually, but the Supreme Court refused to consider that question when it agreed to hear the case.) Instead, Voisine pushed the doctrine of “constitutional avoidance”—essentially arguing that the federal law might infringe upon his right to bear arms, and so the court should rule for him on other grounds to avoid having to decide that vastly more monumental question.   

 

Thomas’ line of questioning completely reversed the court’s apparent view of the case. Before he spoke up, Voisine seemed likely to lose, as a majority of the justices poked holes in his complicated argument over recklessness. After Thomas’ questions, at least one liberal—Breyer—appeared somewhat enticed by the proposition that the court could rule in Voisine’s favor to avoid opening the Pandora’s box that is the Second Amendment. It was a powerful, startling moment, made all the more fascinating by the mystery of Thomas’ motivation: Why now?

Transcripts will be posted on the Supreme Court website later today.

The Voisine case is featured in the upcoming moot court competition at Akron Law's Center for Constitutional Law

Articles on Women in the Legal Profession: Few Women in the Supreme Court and Few Minority Women in Firms

This Lawyer's First Supreme Court Case Will Decide the Fate of Abortion Rights

[Stephanie] Toti is preparing to argue her first Supreme Court case -- the most significant abortion trial of this century. On March 2, she'll take the lead in oral arguments on Whole Woman's Health v. Hellerstedt, a case that could determine whether women in Texas and across the country will have access to abortion services in their communities.

 

The case challenges the constitutionality of two Texas abortion restrictions passed in 2013 that were designed to shut down most of the clinics in the state. The decision will not only determine the fate of abortion access in Texas; it will also send a signal to other states about the appropriateness of similar laws.

 

Most litigators who argue big cases before the Supreme Court are white men who have done it before. An elite group of 66 lawyers -- only eight of whom are women -- argued nearly half of the cases before the high court from 2004 to 2012, according to a 2014 Reuters analysis of 17,000 attorneys. Some of those attorneys have argued dozens of cases before the court, and nearly half of them are graduates of Harvard or Yale law schools who clerked for Supreme Court justices after graduation. That narrow representation turns the court into what the Reuters investigators described as an “echo chamber."

 

But in the most consequential abortion rights cases, the reproductive rights movement has repeatedly turned to relatively inexperienced women.

 

Sarah Weddington was 27 when she argued and won Roe v. Wade, the 1973 case that legalized abortion throughout the United States. Weddington had no previous experience with the high court. “Because I hadn’t been able to get a job with a law firm, I didn’t have any real experience,” Weddington told Ms. Magazine last year. “I had done one adoption for my uncle, some divorces for people with no real assets to divide up, a couple of wills for people with very little money. I had not done Big Law.”

 

In 1992, reproductive rights advocates chose Kathryn Kolbert to represent them in the case Planned Parenthood v. Casey, which challenged a Pennsylvania law requiring a 24-hour waiting period and spousal notification before a woman could obtain an abortion. Kolbert, then a 40-year-old attorney for the American Civil Liberties Union, had only argued one case before the Supreme Court, but she claimed a narrow victory over Pennsylvania’s Republican attorney general. The court ruled that states can regulate abortion, but cannot place an "undue burden" on the right to obtain one. 

ABA J, Minority Women are Disappearing from Big Law--And Here's Why

Eighty-five percent of minority female attorneys in the U.S. will quit large firms within seven years of starting their practice. According to the research and personal stories these women share, it’s not because they want to leave, or because they “can’t cut it.” It’s because they feel they have no choice.

 

“When you find ways to exclude and make people feel invisible in their environment, it’s hostile,” Jones says. “Women face these silent hostilities in ways that men will never have to. It’s very silent, very subtle and you, as a woman of color—people will say you’re too sensitive. So you learn not to say anything because you know that could be a complete career killer. You make it as well as you can until you decide to leave.”

 

Disturbing sentiments like these led the ABA Commission on Women in the Profession to undertake the Women of Color Research Initiative in 2003. Findings concluded that, in both law firms and corporate legal departments, women of color receive less compensation than men and white women; are denied equal access to significant assignments, mentoring and sponsorship opportunities; receive fewer promotions; and have the highest rate of attrition.

 

“If you look at the women-of-color research, the numbers are abysmal,” says the New York Public Library’s general counsel, Michele Mayes, who chairs the ABA commission. “When you lose any ground, you lose a lot because you never had that much in the first place.”

 

Studies and surveys by groups such as the ABA and the National Association of Women Lawyers show that law firms have made limited progress in promoting female lawyers over the course of decades, and women of color are at the bottom.

 

“We’re still a profession less diverse than doctors or engineers and that is 88 percent white,” notes Danielle Holley-Walker, dean of Howard University School of Law. “We’ve been at this for 40-plus years—firms have been recruiting lawyers of color since the late ’60s.

Annotated Bibliography of Justice Ginsburg's Work

Came across this during some research and thought it was worth a share.

Sarah Valentine (CUNY), Celebrating the Jurisprudence of Ruth Bader Ginsburg: An Annotated Bibliography, 7 N.Y. City L. Rev. 391 (2004) [WL Link]

Table of Contents
I. Introduction

II. Works by Ruth Bader Ginsburg 
A. Foreign or Comparative Legal Issues 
1. Books 
2. Articles and Book Chapters 
B. United States Federal Procedure 
C. Works on Sex Discrimination and Ginsburg's Litigation to Achieve Recognition of Gender Equality 
1. Books 
2. Articles 
D. Judicial Philosophy and the Judiciary 
E. The Legal Profession 
1. Appellate Advocacy 
2. Legal Ethics 
3. Legal Education 
4. Women “At” (and Behind) the Bench and Bar 
5. Jewish Justices and Jewish Identity 
F. Tributes, Remarks and Miscellany 
III. Books, Book Chapters and Law Review Articles On or About Ruth Bader Ginsburg 
A. Books and Book Chapters on or About Ginsburg 
1. Books Written for the Child or Young Adult Audience 
2. Books or Book Chapters on Ginsburg for the Academic or Scholar 
B. Law Review Articles on or About Ginsburg 

Law & Gender at Law & Society 2016

Panels related to law and gender at the upcoming Law & Society Annual Meeting:

L&S Preliminary Program List of Events (search Events by title below for panelists and further information)

AMR: Srimati Basu - "The Trouble with Marriage: Feminists Confront law and Violence in India", University of California Press, 2015. CRN Feminist Legal Theory; CRN South Asia; CRN Ethnography 

Family Law and Social Change in Latin America: Where do Feminists Belong?

Critical Perspectives on Reproductive Justice: From Activism to the Academy 

Media Renderings of Identities and Institutions: Lawyers,Gender, and Courts

Recognizing Violence: How the Law Sees (or does not See) Abuse

SALON ROUNDTABLE: Teenage Girls Learn Their Rights about Sexual Harassment in Schools: Case Studies from Sweden and the USA

 The Politics of Women's Legal Mobilization and Access to Justice in Latin America (IRC: Courts and Women’s Rights: New Frontiers in Legal Research in Latin America)

Gender Issues in Law: Past, Present and Future

Gender and Judging in Muslim Courts (IRC: Gender and Judging in Muslim Courts)

Gender, War, and Peacebuilding

International Law and Environmental Justice: The Intersections of Race, Gender, Poverty and Indigeneity

Intimidation against Women and Issues of Vulnerability in Law

Gender in Legal Practice IRC Gender and Careers in the Legal Academy

Gendered Inequality and Violence as Human Rights Problems

Intended Consequences? The Effects of Legal Reform in Matters of Sex

Resisting Stereotypes of Gender and Sexuality at Law

Wither Redistribution? Feminism, Neoliberalism, Work, and Family

 Deportability and the Spectrum of Gender-Based Violence across North America

Gender and Judging

Law, Feminism, and Response

Law's promise to social change: gender and identity boundaries

(CRN 38) Gender, Identity and Equality

Advancing Diversity with Feminist Legal Theory

Hostile Institutions? Gendered Violence in Prisons, Education, Housing, and the Military

IRC: Gender Inequalities and Enforcement of Human Rights in the MENA Region

Legacies of Colonization for the Politics of Sex and Gender

Sexual Violence and the Law

Gender, Economy and the State

Contesting Motherhood Across Criminal, Civil, and State Borders

Cultural Perceptions of Law: Contracts, Women, & Fiction

Discrimination at Work

Empirical Challenges of Deepening Democracy: Reflections on Gender and Power

Frontiers of Gender Theory: Freedom of Expression, IP, and the Internet

Highlighting Invisibility: Law, Women and Migration

Policing, Masculinities, and Gender

The Coming Era of Gender Inequality

Sexism

[or try List of Events/Sorted by Gender]

 

Ziegler on Choice at Work: Pregnancy Discrimination and Reproductive Rights

Mary Ziegler (Florida State), Choice at Work: Young v. UPS, Pregnancy Discrimination, and Reproductive Liberty, 93 Denver L. Rev. 219 (2015).

Abstract:

In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion.

 

A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the PDA. For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.

 

The history of the meaningful-choice principle suggests that while the Court reached the right outcome, Young still falls short of providing women the protection intended by the framers of the PDA. By a 6-3 vote, the Court vacated a Fourth Circuit decision vindicating United Parcel Service’s “pregnancy-blind” employment policy—that is, the policy effectively excluded pregnant workers but did not formally categorize them on the basis of pregnancy. In its application of the McDonnellDouglas burden-shifting analysis, Young removed some of the obstacles previously faced by pregnant workers relying on disparate treatment theories. However, the Court still assumes that employers could have legitimate reasons for discriminating against pregnant workers beyond their ability to do a job, creating precisely the kind of burdens on

The Difference Women Jurors Made to Criminal Convictions

A Jury of Her Peers: The Impact of the First Female Jurors on Criminal Convictions

This paper uses an original data set of more than 3000 cases from 1918 to 1926 in the Central Criminal Courts of London to study the effect of the Sex Disqualification (Removal) Act of 1919. Implemented in 1921, this Act made females eligible to serve on English juries, providing a novel setting for studying the impact of female representation on jury verdicts. Results based on a pre-post research design imply that the inclusion of females had little effect on overall conviction rates but resulted in a large and significant increase in convictions for sex offenses and on the conviction rate differential between violent crime cases with female versus male victims. The inclusion of women also increased the likelihood of juries being discharged without reaching a verdict on all charges and the average time taken to reach a verdict. A complementary analysis of cases in which the jury was carried over from a previous trial also implies that the inclusion of female jurors on the seated jury sharply increased conviction rates for violent crimes against women versus men.

Is It All Bad News for Women Lawyers?

Is it All Bad News for Women Lawyers?

I have written before about the National Association of Women Lawyers (NAWL) most recent Annual Survey on the progress of women lawyers.  At first blush, it's pretty discouraging --- as it has been for the previous eight years. I am especially disappointed with the reporting on the gender compensation pay gap.  Equal work should mean equal pay.  These figures appear to be affected by a lot of gender bias and failure to recognize that men and women approach work differently.  It should not all be about billable hours.  Regrettable to be sure.

 

However, I recommend that you keep an open mind when you read the results of the survey.  Ask yourself whether this report is measuring progress for women lawyers with a yardstick that matters to you.  There is a difference between measuring how many women advance to partnership and management positions in law firms and measuring how many women lawyers stay in the profession and have satisfying careers.

 

For many of you, who are not able to push forward to partnership without interruptions from family and caretaking responsibilities, the important thing is that success is not a series of snapshots at predetermined career markers.  Success is a spectrum of moments and years of keeping a career alive and finding a balance that works for you.

   So, here are the highlights from NAWL’s Ninth Annual Survey, as recently reported by Above the Law:

• Men continue to be promoted to non-equity partner status in significantly higher numbers than women.
• Among the non-equity partners who graduated from law school in 2004 and later, 38% were women and 62% were men.
• The compensation gender gap remains wide. The typical female equity partner earns 80% of what a typical male equity partner earns, down from 84% in the first survey. Thus, the gap reported a decade ago has gotten wider.
• Women continue to be under-represented on the highest governance committees. The typical firm has 2 women and 8 men on their highest U.S.-based governance committee —around 20% women.
• Women are under-represented on compensation committees. Yet, law firms that report more women on their compensation committees have narrower gender-pay gaps.
• The typical female equity partner bills only 78% of what a typical male equity partner bills. However, the total hours for the typical female equity partner exceeded the total hours for the typical male equity partner.
• Lawyers of color represent only 8% of the law firm equity partners. In other words, 92% of biglaw partners are white.
• Women have not made “appreciable progress” since 2006 in either attaining equity partnership or increasing their pay to be on par with their male colleagues once they grasp the brass ring. As Bloomberg highlights in NAWL’s report“Women represent 18 percent of equity partners, an increase of two percent since 2006.”

For the NAWL survey, go here.

Books: On Pauli Murray, Black LGBT Feminist Lawyer

NYT, The Firebrand and the First Lady

The byline was Eleanor Roosevelt’s, though the headline, apparently, was not. “One of my finest young friends is a charming woman lawyer — Pauli Murray, who has been quite a firebrand at times but of whom I am very fond,” Roosevelt wrote. “She is a lovely person who has struggled and come through very well.” Indeed, nothing was ever easy for Murray, a black woman born in 1910, a woman attracted to women and also a poet, memoirist, lawyer, activist and Episcopal priest. But her tender friendship with Roosevelt, sustained over nearly a quarter-century and more than 300 cards and letters, helped. It is the rich earth Patricia Bell-Scott tills for “The Firebrand and the First Lady,” a tremendous book that has been 20 years in the making.

 

You could say Pauli Murray was born too soon, and saying so captures the essential injustice of her life, but it would also rob her of credit for making her own time the best she could. “I’m really a submerged writer,” Murray once told her friends, “but the exigencies of the period have driven me into social action.” The granddaughter of a woman born into slavery and a mixed-race Union soldier, Murray was arrested for refusing to sit in the colored section of a bus 15 years before the Montgomery bus boycott and for participating in restaurant sit-ins in the early 1940s, long before the 1960 sit-ins at Woolworth’s lunch counter. She led a national campaign on behalf of a black sharecropper on death row. ***

 

And Bell-Scott, who was an editor of the important anthology “All the Women Are White, All the Blacks Are Men, but Some of Us Are Brave,” persuasively suggests that Roosevelt’s influence contributed to what would be Murray’s most lasting mark, on women’s rights. “She had spent the first half of her life fighting for equal rights as an African-American, only to discover she would have to spend the second half fighting for equal rights as a woman,” Bell-Scott writes. A brilliant legal strategist, Murray formulated a plan for rendering sex discrimination unconstitutional using the 14th Amendment, co-founded the National Organization for Women and tried her best to build bridges between black and white feminists. In Ruth Bader Ginsburg’s first brief to the Supreme Court, in 1971, she listed Murray as a co-author, though Murray had not worked on it, a nod to the brief’s intellectual ancestry. Ginsburg’s win in that case wrested from the Supreme Court its first ruling against sex discrimination as unconstitutional.

Woman, Female or Lady? An Etymological Dilemma

Slate, When You Should Use Female, Woman, or Lady as an Adjective: A Guide

We had this dilemma in captioning a class action lawsuit.  Women Prisoners of the DC Dep't of Corrections v. District of Columbia (1993).   And chose "women" for the exact reason discussed of the history of derogatory use of the term "female," even when correctly used as an adjective (rather than a noun).

Including a Gender Perspective in Human Rights Work

Ciara O'Connell, Engendering Reproductive Rights in the Inter-American System, in Gender, Sexuality and Social Justice: What's Law Got to Do With It?, Kay Lalor, Elizabeth Mills, Arturo Sánchez García and Polly Haste, eds., p. 58, Institute of Development Studies, 2016

Abstract:     

The challenge of including a gender perspective within human rights work has been a project only recently undertaken by the international human rights community. It is undeniable that much progress has been made over the past two decades in regard to advocacy and legal efforts to protect, promote and fulfil women’s human rights. However, there remain significant shortcomings in how the law is used to address systemic conditions that cause the subordination of women. This article seeks to explore the gap that exists between women’s rights rhetoric and implementation at the national level. An examination of women’s reproductive rights in the Inter-American System of Human Rights serves as a lens by which to explore how international human rights bodies fall short in addressing the gendered implications of women’s rights violations as they are embedded in national cultures.

 

New Books: Sex Crimes and Trafficking

Alissa Ackerman & Rich Furman, Sex Crimes: Transnational Problems and Global Perspectives (Columbia U. Press)

• This book is the first to investigate all aspects of sexual crimes and the policy and management initiatives developed to address them from a transnational, global perspective. Introducing an array of tools for reducing the prevalence and consequences of sex crimes, this volume brings together leading scholars in criminology, criminal justice, social work, and law to discuss topics ranging from sex trafficking and sex tourism to pornography, cyberstalking, and sexual abuse in the military and the Catholic church. Case studies track the reporting of these crimes, the methods used to interview victims and perpetrators, and the policies enacted to punish those involved.                                                                                     
• Listen to an interview with author Alissa Ackerman on the subject: http://www.againstthegrain.org/program/1191/mon-72715-sex-crimes-and-masculiniti

Alexandra Lutnick, Domestic Minor Sex Trafficking (Columbia U. Press) 

• “This book is a must for anyone interested in youth involved in the sex trades or sex-trafficking issues. The research and discussions offer a glimpse into the nuanced and complicated realities that facilitate youth involvement in sex trades. Lutnick's scholarship helps us to think beyond the victim/villain binary by exposing the various ways in which family, friends, policy, and the state are accountable to their circumstances. The book offers timely and useful strength-based strategies that also attend to issues of oppression and justice.”
  
  
  
  

Gender Differences in Post-Tenure Productivity Due to Fewer Solicited Invitations to Women Law Faculty

Albert Yoon (Toronto), Academic Tenure, J. Empirical Studies (forthcoming) 

We also note that when limiting publications to articles and essays, the gender differences remain statistically significant across all three outcome measures, but are smaller than for the full sample of publications. This reduction in the gender gap suggests that male faculty are more likely to receive invitations to participate in symposia and other solicited venues for publication than female faculty. This disparity accounts for at least some of the observed gender gap in productivity. ***

 

The gender difference in productivity we consistently observe warrants additional comment. Women write fewer articles post-tenure, are cited less frequently, and place in lower-ranked journals than men. The point estimates on gender reflect general comparisons between female and male faculty, and do not identify differences before and after tenure. In separate specifications, not reported, we examine female and male faculty separately. We find that across the full sample of publications, female faculty exhibit roughly the same productivity on all three measures before and after tenure, while male faculty’ publication count increases by 24 percent (their citation rate and journal placement do not meaningfully change).

 

The underlying explanation for these gender differences goes beyond the scope of this Article and warrants closer examination. Other studies have examined men and women in law school, the entry-level law teaching market, and the legal profession, often identifying large differences between the genders. The limits of our data make it difficult to further explore possible explanations for the differences we observe. We do not, for example, observe which faculty – men and women – are married or have children during the first ten years of their academic careers, either of which could influence their productivity. Part of the differences, we observe, however, may be institutional, given that we observed that men publish in symposia – typically solicited publications – disproportionate to their numbers in the academy.

H/t Tax Prof Blog

Appointing Women to the Supreme Court

13 Women Who Should be Considered to Replace Justice Scalia

Rosalind Dixon, Female Justices, Feminism, and the Politics of Judicial Appointment: A Re-Examination, 21 Yale J. L. & Feminism 297 (2010) 

Mary Clark, Changing the Face of the Law: How Women's Advocacy Groups Put Women on the Federal Appointments Agenda, 14 Yale J. L. & Feminism (2002)

 Sally Kenney, Gender & Justice: Why Women in the Judiciary Really Matter (2012)

   

Commentary on Scalia and Women's Rights

The Guardian, Antonin Scalia: A Supreme Court Justice "Extreme and Out of Step" with Women

The American Civil Liberties Union called his comments “extreme and out of step with the mainstream”; the National Women’s Law Center said: “Rather than acknowledging that our understanding of the principles enshrined in the constitution grows and deepens over time, [Scalia] would freeze its meaning in the 19th century.”

 

Scalia walked back the controversial comments a bit in a 2013 New York Magazine interview, saying “of course” the 14th amendment prohibits discrimination by sex – but that the issue is what constitutes discrimination.

 

“There are some intelligent reasons to treat women differently,” he noted. (He also expressed discomfort with women who swear.)

 

Justice Scalia's Record on Women's Rights

What can be said about Scalia’s legacy to women and the law? Well, he has generally voted against cases implicating women’s rights for the last twenty-five years.

Scalia (in)famously said in an in an interview in 2011: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”

Equal Employment

Against class actions for sex discrimination Wal-mart v. Dukes, 564 U.S. ___ (2011) (Scalia, J., majority opinion)

Against equal employment extended statute of limitations Ledbetter v. Goodyear Tire, 550 U.S. 618 (2007) (subsequently overruled by Congress, The Lilly Ledbetter Fair Pay Act of 2009)

Workplace

Family Medical Leave Act Nevada v. Hibbs, 538 U.S. 721 (2003) (Rehnquist, J., majority opinion)

Against state worker remedies for FMLA self health-care provision Coleman v. Court of Appeals of Maryland, 566 U.S. ___ (2012) (Scalia, J., concurring)

Against pregnancy accommodations   Young v. UPS, 575 U.S. ___ (2015)

Against retaliation claims Title IX Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005)

Equal Protection

Education United States v. Virginia, 518 U.S. 515 (1996) (Scalia, J., dissenting)

            Scalia, Dissent:

            Much of the Court's opinion is devoted to deprecating the closed mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed minded they were--as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all men's military academy--so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States--the old one--takes no sides in this educational debate, I dissent.

Domestic Violence

Against civil remedy of the federal Violence Against Women Act United States v. Morrison, 529 U.S. 598 (2000)

Against suit to enforce police enforcement of protection orders Castle Rock v. Gonzales, 545 U.S. 748 (2005) (Scalia, J., majority)

Sexual Harassment

Against vicarious liability of employer Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998)

Reproductive Rights

Against abortion right Gonzales v. Carhart, 550 US 124 (2007); Planned Parenthood v. Casey, 505 U.S. 833 (1992)

Against abortion protest buffer zones McCullen v. Coakley, 573 U.S. ___ (2014); Hill v. Colorado, 530 U.S. 703 (2000) (Scalia, J., dissenting); Madsen v. Women's Health Center, 512 US 753 (1994) (Rehnquist, J., majority)

For reasonable search of pregnant patients by hospital drug test for criminal prosecution Ferguson v. Charleston, 532 U.S. 67 (2001) (Scalia, J., dissenting)

Against the healthcare contraceptive mandate Burwell v. Hobby Lobby, 573 U.S. ___ (2014)

 

 

The few cases in which Scalia voted in support of the decision for women’s rights were unanimous decisions or otherwise earlier in his SCOTUS career, statutory, and often accompanied by his own concurring reservations.

Education

Title IX private cause of action and remedies Franklin v. Gwinnet County Public Schools, 503 U.S. 60 (1992) (“too late in the day” to hold otherwise) (Scalia, J., concurring)

Sexual harassment

Harris v. Forklift Systems, 510 U.S. 17 (1993) (Scalia, J., concurring) (“I know of no alternative to the course the Court today has taken.”

Front-pay hostile environment claims Pollard v. E.I. Dupont, 532 US 843 (2001) (unanimous decision)

Constructive Discharge PA State Police v. Suders, 542 U.S. 129 (2004)

Retaliatory discrimination Burlington v. White, 548 U.S. 53 (2006) (unanimous)

Employment Discrimination

Pregnancy Discrimination Act prohibits workplace fetal protection laws UAW v. Johnson Controls, 499 U.S. 187 (1991) (Scalia, J., concurring)

Punitive damages employment discrimination Kolstad v. American Dental Assoc., 527 U.S. 526 (1999)

Direct evidence in mixed-motive case not necessary Desert Palace v. Costa, 539 U.S. 90 (2003) (unanimous decision)

Domestic Violence

Davis v. Washington, 547 U.S. 813 (2006) (Scalia, J., majority opinion) upholding a 911 call in a domestic violence case against Sixth Amendment challenge (unanimous decision)

 

 

New Work on Domestic Violence in the Immigration Context

Natali Nanasi (SMU), Domestic Violence Asylum and the Perpetuation of the Victimization Narrative

Abstract:

Pitiful. Helpless. Powerless. The words often used to describe survivors of domestic violence conjure a vivid and specific image of a woman lacking both strength and agency. These (mis)conceptions stem from the theories of “Battered Woman Syndrome” and “learned helplessness,” developed in 1979 by psychologist Lenore Walker, who hypothesized that intimate partner abuse ultimately causes a woman to resign herself to her fate and cease efforts to free herself from violence or dangerous situations.

Although widely criticized, learned helplessness has permeated the legal establishment, for example, serving as the foundation for mandatory arrest and “no drop” policies in the criminal sphere of domestic violence law. Legal scholars have examined the problematic impacts of both the theory of learned helplessness itself and its effect on survivors in the criminal and civil justice systems. This article adds to that important conversation by exploring the previously unexamined area of learned helplessness’ impact on immigration, specifically asylum, law.

Through a series of cases from 1996 to 2014, it is now established that a woman may receive asylum protection if she can establish that she is “unable to leave” a violent domestic relationship. This formulation fits squarely within Walker’s framework, as it requires a victim to advance a narrative of helplessness if she is to obtain refuge in the United States. Furtherance of the notion of Battered Woman Syndrome in asylum law is troubling for a number of reasons, namely, as this piece details, in the harms that can result when survivors of domestic violence are required to conform to a specific “stock story” (including injury to both those who fit the stereotype and those who do not). Additionally, continued adherence to and reliance on learned helplessness poses challenges for client-centered lawyering, perpetuates the tendency of victim-blaming, ignores the realities of the dangers of separation violence, and furthers the damaging dichotomy of “worthy” and “unworthy” immigrants.

By identifying these concerns and proposing alternative bases for protection that would encompass not just pitiable and vulnerable victims of domestic violence, but strong, empowered and capable fighters against domestic abuse, this article seeks to critique, rebut and prevent the infiltration of static and stereotypical images of battered women in the realm of immigration law.

 

Rebecca Gail Dudley (Queen's Univ. Belfast), Domestic Abuse and Women with No Recourse to Public Funds: Where Human Rights Do Not Reach

This Executive Summary (8 pages) outlines findings and recommendations from research to identify the experience of women who are subject to immigration control and experience domestic abuse in the UK. Focussing on one immigration rule, ‘no recourse to public funds,’ it concludes that the fundamental rights of women in the UK, to life, and to freedom from torture, are being violated. The state does not uphold the rights of these women, nor is it neutral. Rather, the role of the state prolongs the abuse and makes it worse. This summary also summarises recommended changes to law and policy

 

Parental Equality When Parenting Isn't Equal

Susan Boyd (British Columbia), “Equality: An Uncomfortable Fit in Parenting Law”, in Robert Leckey, ed., After Legal Equality: Family, Sex, Kinship (Routledge 2015), 42-58

Since the second wave of the women’s movement and the emergence of the fathers’ rights movement in the 1970s and 1980s, family law has moved towards formal legal equality and gender-neutral language. Early liberal feminists were optimistic about involving men as equal partners and parents and were keen to remove gender-based legal assumptions. Fathers’ rights advocates lobbied for equal or joint custody norms and for mothers to have equal financial responsibilities, in order to redress what was and still is perceived as discrimination against men. In most modern family laws, male and female spouses now owe reciprocal duties of financial support and disputes over children are determined by a child’s best interests, rather than by assumptions based on gender. More recently, this gender-neutral language has accommodated the reality of same-sex partnerships and same-sex parenting.

 

These gender-neutral legal norms, however, sit uncomfortably next to familial realities that remain stubbornly gendered and unequal in certain respects, particularly because women still assume greater responsibility for domestic labour and childcare. Many feminists challenge calls for equal treatment of fathers and instead propose legal norms that recognize these unequal social relations. Even if the legal norms are gender-neutral on their face, they should include guidelines that direct attention to gendered patterns or they should be interpreted so as to take account of gendered social realities still supported by social and economic structures. For instance, spousal support law should take account of the patterns of domestic labour in the family at issue. As for child custody, norms should direct attention to whether one parent has taken primary care responsibility for a child and whether domestic abuse is a factor (e.g. Boyd 2002; Shaffer and Bala 2003).

 

This chapter uses laws on parenthood to study the contradiction between the trend towards formal equality and ongoing gendered patterns of care, as well as the growing phenomenon of parenting by lesbians and by gay men and by single mothers by choice, by which a woman plans to be a child’s sole parent. Specifically, it assesses the innovative potential of the new Family Law Act (FLA)1 in the Canadian province of British Columbia, which redefines legal parenthood and alters the regulation of post-separation parenting. The new definitions of legal parenthood respond to calls for the recognition of same-sex parenting and reproductive technologies. The new norms on post-separation parenting respond to calls for equal treatment of fathers, but they also take account of research on the troubling impact of shared parenting law reforms regulating post-separation disputes over children. As such, the FLA arguably eschews strict formal equality.

Books: The History of Women Lawyers in Maryland

Law and Politics Book Review: FINDING JUSTICE: A HISTORY OF WOMEN LAWYERS IN MARYLAND SINCE 1642

This engaging volume was produced as part of the Finding Justice Project, a collaborative effort among a small group of judges, lawyers, and legal academics to recover and illuminate neglected histories of women in law in Maryland. Sponsored by the Maryland Women’s Bar Association Foundation, the project sought to identify and learn about the work and lives of as many women lawyers as possible practicing in Maryland since 1642. For this purpose, a research team collected information from many sources, including records of the names along with signatures of all who received bar admission, court records describing the cases in which women lawyers participated, birth and death certificates and census records of their families, and newspaper reports regarding the professional and personal lives of some women lawyers in the state. One product of these efforts is a list of nearly 25,000 women admitted to the Maryland bar through 2014, a list reproduced in an appendix organized by year of admission that is printed on nearly 100 pages (pp. 173-268).

We learn in the Preface that the Project initially hired an author to write a book based on the data collected. After the author withdrew, The Honorable Lynne A. Battaglia, the editor of this volume and a central advocate for the Project, developed a new plan to produce an edited collection to include several chapters written by a variety of women practitioners with different themes related to women in law, with emphasis on particular women in law, and with a focus on various historical moments. Although the chapters are generally brief in a book that includes only 167 pages of text prior to appendices, together they present a coherent and interesting portrait of the many challenges and opportunities experienced by diverse women interested in legal careers in Maryland over time. The chapters are well organized and conceived, and the details provided regarding legal careers in Maryland are often quite fascinating.

H/t Legal History Blog, Sunday Book Roundup

Jewish Women Legal Practitioners and the History of Legal Aid

Felice Batlan (Chicago-Kent), Forging Identities: Jewish Women, Legal Aid, and the Secular Liberal State 1890-1930, Indiana J. Law & Social Equity (forthcoming).

Abstract:     

This article discusses an unexamined area of the history of the legal profession — the role that late nineteenth and early twentieth century Jewish women legal practitioners played in the delivery of free legal aid to the poor as social workers, lawyers, and, importantly, as cultural and legal brokers. It presents two such women who represented different types and models of legal aid — Minnie Low of the Chicago Bureau of Personal Service, a Jewish social welfare organization, and Rosalie Loew of the Legal Aid Society of New York. The article interrogate how these women negotiated their identities as Jewish professional women, what role being Jewish and female played in shaping their careers, understandings of law, and the delivery of legal aid, as well as the constrained professional possibilities, but at times, opportunities, both women confronted and embraced. By puzzling through these issues, we also see two contrasting understandings of the rule of law and the secular liberal state. 

 

OH Bill to Remove Guns in Civil Domestic Violence Orders

Ohio Bill Allow Guns to be Removed by Protective Order

LEGISLATIVE HISTORY

A bill introduced by Democratic state lawmakers in 2013 would have required people subject to temporary protection orders in criminal or civil cases to surrender firearms to law enforcement agencies or sell them to federally licensed firearms dealers. The bill also spelled out how the guns could be returned after the protective order expired.

The bill, sponsored by former Rep. Bob Hagan, a Youngstown Democrat, was referred to the GOP-controlled House Judiciary Committee, where it languished after just one hearing.

———

THE NEW BILL

Rep. Nickie Antonio, a Democrat from Lakewood in suburban Cleveland, says her upcoming bill would give judges the discretion to order firearms removed when temporary protective orders have been issued. Antonio says the bill would also bring state law into line with federal law.

 

Arguably, a civil court has power to do so now: Ohio Rev. Code 3113.31

(h) Grant other relief that the court considers equitable and fair, including, but not limited to, ordering the respondent to permit the use of a motor vehicle by the petitioner or other family or household member and the apportionment of household and family personal property

 

See Conkle v. Wolfe, 131 Ohio App. 3d 375 (4th Dist. 1998); Woolum v. Woolum, 131 Ohio App.3d 818 (12th Dist. 1999).