Gender and the Law Prof Blog

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

Thursday, January 17, 2019

Podcast: The Ginsburg Tapes

The Ginsburg Tapes

The Ginsburg Tapes is a podcast about Ruth Bader Ginsburg’s oral arguments in the Supreme Court—before she became #NotoriousRBG.

 

Specifically, from 1972-1978, Ginsburg argued six cases in the Supreme Court.  In each case, she and the ACLU Women’s Rights Project brought constitutional challenges to laws treating men and women differently.  Ginsburg’s goal was to show the ways in which laws which seemed on their face to benefit women actually perpetuated stereotypes and held women back from full participation in American life.

 

For all six cases, Lauren breaks down the real recordings of the oral arguments.  The tapes allow listeners to be a fly on the wall, to teleport to that moment in history.  Listeners can hear Ginsburg make her case, and listen to reactions from the all-male Supreme Court.  You’ll hear from liberal icons like Justice Thurgood Marshall and Justice William Brennan, and conservative icons like Chief Justice Warren Burger and then-Justice William Rehnquist, as they grapple out loud with what the Constitution means.  In each episode, Lauren talks about history, effective advocacy, constitutional change, the power of the Supreme Court, and gender equality.

January 17, 2019 in Constitutional, Judges, SCOTUS, Women lawyers | Permalink | Comments (0)

Tuesday, December 4, 2018

At Least For Now, Women Have Reproductive Rights

Joanna Grossman, At Least for Now, Women Have Reproductive Rights, Justia

It’s hard to read a single day’s news without encountering a new threat to reproductive rights. To take just one egregious example, Republican legislators in Ohio recently introduced a bill that would abolish abortion in all circumstances, including cases of rape, incest, and a threat to the woman’s life. The fetus would be treated as a person, and women and providers could potentially be punished with life in prison or even the death penalty. This bill might not make it out of the Ohio House of Representatives; it might not be passed by the Senate; and it might not be signed by the current governor or the one who will replace him in January. But it might leap over all of those hurdles and become the strictest abortion law in the nation. Similar bills, maybe one notch less extreme, have become law in several states in recent years. * *  *

 

Extreme anti-abortion measures proposed or passed in recent years have a number of things in common. First, they do not reflect the will of Americans, seven in ten of whom support abortion in all or almost all circumstances. Second, they are unconstitutional. Third, the legislators who support or vote for these bills know both of these things. * * *

 

In a recent case, a federal judge in Mississippi permanently enjoined one of these ultra-restrictive laws. In that case, Jackson Women’s Health Organization v. Currier, the court concluded that a ban on abortions after 15 weeks imposed an unconstitutional burden that could not be squared with the applicable caselaw. In response to the question whether this law violates the Fourteenth Amendment, the court concluded that “[i]t does, unequivocally.”

December 4, 2018 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Tuesday, November 20, 2018

The Modern Legal History of the Equal Rights Amendment

With Virginia seeking to be the third state to ratify the ERA in recent times, the discussion has reignited over passing the ERA.  An excerpt from my recent book chapter places this development in legal historical context: 

See Tracy Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018) (tracing the complete legal and political history of the ERA from 1921).

The National Organization for Women (NOW), newly formed in 1966 by Betty Friedan and Murray, pressed for full enforcement of the new Title VII and actualizing its mandate of equality in employment (Fry 1986). By 1970, federal courts, the Department of Labor, and the EEOC all interpreted Title VII as invalidating women-specific rules, including protective labor legislation and, more importantly, requiring extension of any protections like minimum wages to men rather than eliminating them for women (Mansbridge 1986). Union and social feminist opposition to the ERA finally began to wane, with the long-standing concern over worker protection laws now addressed (Mayeri 2004).

NOW quickly prioritized the ERA. The 1960s had seen few litigation successes with the judicial approach, and legal activists believed they needed the political leverage, if not the substantive right, of an equality amendment campaign (Mayeri 2004). NOW adopted the ERA as a top priority at its conference in 1967. It rejected Pauli Murray’s alternative proposal for a human rights amendment that would have more broadly granted a “right to equal treatment without differentiation based on sex,” potentially encompassing sexual orientation and explicitly addressing private action and reproductive rights (Mayeri 2004: 787). Long-standing ERA proponents, now much older, adamantly opposed any change in the wording of the ERA that might broaden it to more radical agendas, fearing it would jeopardize existing support . This had the effect of reducing feminist demands to “their lowest common denominator” rather than pursuing a wider social justice agenda (Mayeri 2004: 785). Pursuing a constitutional amendment, however, did not mean abandoning the Fourteenth Amendment litigation. By 1970 “most legal feminists had reached a consensus that the constitutional change they sought could and should be pursued simultaneously through the dual strategy” of amendment and litigation (Mayeri 2004: 800).

In early 1970 the Pittsburgh chapter of NOW used direct action to support its demand for the ERA, disrupting a hearing of the US Senate Subcommittee on Constitutional Amendment on another proposed amendment, with protesters demanding hearings on the long-proposed ERA (Mansbridge 1986; Mathews and De Hart 1990). A Citizens’ Advisory Council on the Status of Women petitioned President Richard Nixon to endorse the amendment, and for the first time the US Department of Labor supported the ERA. In May, the Senate Amendment Subcommittee held hearings and referred the equality amendment positively to the Senate Judiciary Committee. There Senator Samuel Ervin Jr. (D-NC), a states’ rights opponent of the civil rights’ laws, and later of Watergate hearings fame, “became the amendment’s chief antagonist” (Mathews and De Hart 1990: 36). He opposed the ERA because of its threat to social norms, concerned about losing the traditional physiological and functional differences of gender to what he characterized as a passing fad. He attacked “militant women who back this amendment,” saying “they want to take rights away from their sisters” and pass laws “to make men and women exactly alike” (Mathews and De Hart 1990: 37–39). Ervin moved the debate beyond the abstract principles of equality to concerns with specific effects of gender equality, including the draft, divorce, family, privacy, and homosexuality. Harvard Law professor Paul Freund also testified about the “parade of horribles the ERA might produce, including the legalization of same-sex marriage, the abolition of husbands’ duty of familial support, unisex bathrooms, and women in military combat” (Mayeri 2004: 808). The opposition succeeded, and the bill failed in the Senate (Mansbridge 1986).

Meanwhile, the ERA passed in the House. Martha Griffiths used a rare procedural move of the discharge petition to “pry the ERA out of the House Judiciary Committee,” where it had languished for years while the liberal chair, Emanuel Celler (D-NY), “kept it in his bottom drawer” because of the persistent opposition by labor (Mansbridge 1986: 13). After only an hour’s debate, the House passed the ERA by a vote of 350-15 on August 10, 1970. When the Senate failed to pass the bill, it was reintroduced the next year, when the House passed the ERA for a second time on October 12, 1971, by a vote of 354-23. This time the Senate passed the ERA on March 22, 1972, by a vote of 84-8 with a seven-year timeline for the required three-fourths of the states to ratify the amendment (Mansbridge 1986). States initially rushed to ratify the ERA. Hawaii was the first state to ratify the amendment, twenty-five minutes after the Senate vote. The next day, three states ratified, and two more the following day. By early 1973, less than one year after Congress’s passage, twenty-four states had ratified, most unanimously or with quick hearings and debate.

This trajectory halted in 1973 with the Supreme Court’s decision in Roe v. Wade finding a woman’s constitutional right to choose abortion. Roe stopped the advancing ratifications, shifted the public discourse, and overturned previous support by Republicans (Ziegler 2015). “The battle against the ERA was one of the first in which the New Right used ‘women’s issues’ to forge a coalition of the traditional Radical Right” , of those concerned with “national defense and the Communist menace” (Mansbridge 1986: 5), and religious evangelicals to activate a previously apolitical segment of the working and middle classes that “was deeply disturbed by cultural changes” (Mansbridge 1986: 16). Through these groups, he ERA became linked with abortion as both were sponsored by radical “women’s libbers” who were a threat to traditional women and family values. The debate became framed as women versus women.

The face of women’s opposition to the ERA was conservative activist Phyllis Schlafly and her STOP ERA (Stop Taking Our Privileges) organization (Berry 1988; Neuwirth 2015). Schlafly, a mother to six children, offered herself to the anti-ERA movement as a voice for stay-at-home mothers in need of special privileges and protections under the law. The irony that she, much like all the most prominent reformers historically lining up on either side of the ERA amendment (such as Alice Paul, Florence Kelley, and Pauli Murray), held a law degree and enjoyed a flourishing decades-long career in the public eye, was utterly elided in her rhetoric. Doggedly focused on women’s roles as mothers and homemakers, Schlafly trumpeted the cause of women’s difference from men—championing the special rights of women as citizens who, ideally, did not work outside the home. She asserted that equality was a step back for women: “Why should we lower ourselves to ‘Equal Rights’ when we already have the status of ‘special privilege’?” (Wohl 1974: 56). She and other ERA opponents reframed the issue as forcing women into dangerous combat, coeducational dormitories, and unisex bathrooms. Feminist advocates responded by clarifying that privacy rights protected concerns about personal living spaces in residences and bathrooms, but their counsel was unheard in the din of threat to traditional family and gender roles. Opponents equated the ERA with homosexuality and gay marriage, as the amendment’s words “on account of sex,” “were joined with ‘sexual preference’ or homosexuality to evoke loathing, fear, and anger at the grotesque perversion of masculine responsibility represented by the women’s movement” (DeHart-Mathews and Mathews 1986: 49). Schlafly hurled insults at the ERA supporters, urging her readers to view photographs of an ERA rally and “see for yourself the unkempt, the lesbians, the radicals, the socialists,” and other activists she labeled militant, arrogant, aggressive, hysterical, and bitter (Carroll 1986: 65). When ERA supporters “gathered at the federally financed 1977 International Women’s Year Conference in Houston and endorsed homosexual rights and other controversial resolutions on national television, they helped to make the case for ERA opponents” (Berry 1988: 86).

The shift in debate slowed and then stopped ratification of the ERA. In 1974, three states ratified the amendment, one state ratified in 1975 and one in 1977, and then ended the campaign with only thirty-five of the thirty-eight required (Mansbridge 1986). At the same time, states began to rescind their prior ratifications, with five states voting to withdraw their prior approval (Neuwirth 2015). The legality of the rescissions was unclear, but these efforts had political reverberations in the unratified states (Mansbridge 1986).[1] When the deadline arrived without the required three-fourths approval, Congress voted in 1978 to extend the ratification deadline three years to June 30, 1982. Not a single additional state voted to ratify during this extension (Berry 1988). In 1980, the same year President Jimmy Carter proposed registering women for the draft, the Republican Party dropped ERA from its platform and newly elected president Ronald Reagan came out in opposition to the ERA. Businesses, manufacturers, and insurance companies all increasingly opposed the amendment (Burroughs 2015). ERA supporters escalated with more militant demonstrations of hunger strikes and marches. They chained themselves to the gates of the White House fence and Republican National Committee headquarters and trespassed on the White House and governors’ lawns. But such protests had little effect, proving counterproductive as they alienated Republican sponsors and reinforced portrayals of the radicalness of the proposed amendment (Carroll 1986). Despite an extension, the ERA was defeated on June 30, 1982, three states short of the required super-majority of states. Congress immediately reintroduced the amendment, holding hearings in late 1983. The floor vote of 278-147 in the House came six votes short of the two-thirds needed for passage. Despite how close this generation of campaigners had come to achieving their goal, for most, the ERA was now dead (Farrell 1983; Mayeri 2009).

The broader goals of the ERA, however, were not dead or abandoned. All through the previous decade, legal feminists led by the ACLU and Ruth Bader Ginsburg had been pursuing the second front of litigation and doing so with some success. In 1971, the Supreme Court struck down a law for the first time as arbitrary sex discrimination under the Fourteenth Amendment. In Reed v. Reed (1971), the high court overturned a state law that presumptively made a father, and not a mother, the administrator for a deceased child’s estate. Two years later in Frontiero v. Richardson (1973), a plurality of the Court applied heightened scrutiny to strike down a law automatically granting military benefits to wives, but requiring military husbands to show dependency. The pros and cons of the dual constitutional strategy played out in Frontiero. The Court’s plurality endorsed strict scrutiny for sex-based classifications because of congressional passage of the ERA, thus harmonizing the two. But the concurrence held that the pendency of legislation weighed against judicial decision, and required waiting for the final outcome of the constitutional process. In 1976 a majority of the Court definitively applied equal protection to sex discrimination in Craig v. Boren (1976), adopting, however, only an intermediate judicial scrutiny, one more permissive than that for race.[2] As Mayeri (2004: 826) notes, “This Goldilocks solution” in Craig captured the “Court’s ambivalence about both the procedural and the substantive aspects of a revolution in gender roles.” The ambivalence is apparent in that while striking down the law in Craig denying young men equal access to 3.2% beer, the Court upheld other discriminatory laws, like veterans’ preferences for men, statutory rape for minor women, and military pensions for men (Schlesinger v. Ballard 1975; Kahn v. Shevin 1974; Geduldig v. Aiello 1974). Equal protection proved an imperfect solution, and easily manipulable in the hands of the Court. For many activists, this indicated that perhaps an equal rights amendment was needed after all.

In the 1980s, at the time of ERA’s defeat, polling found that a majority of the electorate remained in support of the amendment (Businessweek 1983; Gallup Report 1981; Mansbridge 1986). According to Pleck (1986: 107–108), “In the midst of a national conservative tide, popular support for the ERA was very strong.” Most national leaders, political conservatives, and “major national organizations from the American Bar Association to the Girl Scouts had gone on record in favor of it” (Pleck 1986: 108). Then why did the ERA fail? Scholars and activists have searched for possible explanations. Some suggest that a rushed political process failed to build the necessary state consensus on women’s rights to match the federal consensus, along with inadequate state organizational structure to secure ratification, outdated campaign tactics and failure to use mass media, and lack of legislative prioritization (Berry 1988; Carroll 1986; Mansbridge 1986; Mayo and Frye 1986; Pleck 1986; Steinem 1984). Other scholars point to deep substantive disagreements about women in military combat and revolutionary changes in traditional motherhood, which threaten women personally as they perceive a danger to themselves and their daughters (DeHart-Mathews and Mathews 1986). Berry (1988: 85) notes that “equality may have seemed simple to proratificationists, but to others it meant sexual permissiveness, the pill, abortion, living in communes, draft dodger, unisex men who refused to be men, and women who refused to be women. . . . And a fear that men would feel freer to abandon family responsibilities and nothing would be fined in exchange.” Legal scholar Catharine MacKinnon (1987: 770) thought ERA failed because it did not go far enough, and more radically “mobilize women’s pain and suppressed discontent” derived from systemic, social realities of male supremacy. And still others  questioned the need for an equal rights amendment, given intervening Supreme Court decisions extending equal protection to women and federal legislation like Title VII and Title IX of the Education Amendments (Mansbridge 1986; Mayeri 2004).

Congress continued to reintroduce the Equal Rights Amendment every year after its defeat, but it went nowhere. Glimmers of action appeared in 2007 when a bipartisan group of lawmakers rechristened the amendment the “Women’s Equality Amendment” (Mayeri 2009: 1224) and in 2013 when Representative Carolyn Maloney (D-NY) proposed new language for an equality amendment to make the equality abstraction more concrete: “Women shall have equal rights in the United States and every place subject to its jurisdiction.” But the time and urgency for an equal rights amendment  seemed to have passed. If ERA was not politically dead, it was at least comatose (MacKinnon 1987).

Conclusion: Equal Rights One Hundred Years after Suffrage

In 2014 a new ERA Coalition of major women’s rights organizations formed, fueled by a new generation of young people outraged at continuing inequality and energized to action (Neuwirth 2015). The year brought renewed grassroots interest in the ERA, sparking popular reconsideration of an equality amendment endorsed by celebrities like Meryl Streep and feminist icon Gloria Steinem (Babbington 2015). Justice Ruth Bader Ginsburg publicly called for the ERA to ensure future generations that women’s equality is “a basic principle of our society,” just as she had thirty-five years earlier (Schwab 2014).[3] Even legal feminist scholar Catharine MacKinnon (2014: 569), previously opposed to the ERA as a weak, formalistic attempt at equality, now believed that an ERA is “urgently needed, now as much as or more than ever.” Surveys have shown over the last decade that most voters, as high as 96%, support equality for women, and 91% believe equality should be guaranteed by the Constitution (Neuwirth 2015), indicating perhaps a gendered cultural opportunity for change (McCammon et al. 2001). However, these surveys also show that 72% of people believe, incorrectly, that such rights are already included in the Constitution.

The ERA Coalition believes the time is ripe again for an equal rights amendment, given the next generation’s interest and recent political activity (Neuwirth 2015). In 2014 Oregon passed a state ERA referendum with 64% of the vote. Illinois and Virginia also passed state ERA laws, two states that had not previously ratified the federal ERA. Federal ERA  proponents advocate a “three-states-more” strategy, which assumes the continued validity of the prior ratifications and seeks ratification of ther required three additional states. One state, Nevada, ratified the ERA in March 2017. This extended ratification strategy is supported by the delayed the ratification of the Twenty-Seventh Amendment (salary change for Congress must take effect the following term),  as it was sent to the states for ratification in 1789, but not ratified until 1992, when the last states joined (Burroughs 2015).

A key question is whether women legally need the ERA, or whether its goals of general equality and specific rights have effectively been accomplished through other means. The virtually unanimous consensus of legal scholars is that the ERA’s goals have been effectively achieved through the Supreme Court’s equal protection jurisprudence (Mayeri 2009; Siegel 2006). Courts now review gendered state action under intermediate scrutiny, requiring that any laws treating women differently be justified by important governmental interests and that the laws be closely tailored to those interests (United States v. Virginia 1996; Mississippi University for Women v. Hogan 1982). Other scholars, however, have emphasized the limitations of equal protection analysis for sex equality (Brown et al. 1971; MacKinnon 2014; Mansbridge 1986). For gender discrimination cases under equal protection, the Court utilizes a lower standard of intermediate scrutiny, rather than the strict scrutiny used in race and religious discrimination. This lower standard tolerates many of the continuing instances of less overt sex discrimination and laws that have discriminatory effect rather than textual prohibitions on gender (Siegel 2002). The equal protection approach is also limited because it requires proof of intent—defendants thinking bad thoughts about women—which, MacKinnon (2014: 572) notes, “doesn’t address how discrimination mostly operates in the real world,” where “the vast majority of sex inequality is produced by structural and systemic and unconscious practices” inherited from centuries of gender hierarchy. Equal protection law’s formal classification structure, she explains, which rigidly treats only exactly similar things the same, is incapable of assessing the ways in which people “can be different from one another yet still be equals, entitled to be treated equally” or where affirmative diversity is needed to treat alike those whom are different (MacKinnon 2014: 571).

Some scholars ( Schwab 2014; Hoff-Wilson 1986) also conclude that equality for women has essentially been achieved for women without the ERA because the specific substantive goals of the amendment were accomplished through a variety of federal legislation on specific issues as well as the parallel state constitutional amendments. Twenty-three states adopted mini-ERAs, and such amendments have helped strengthen women’s ability to challenge discriminatory laws in those states. Courts often interpret the state ERAs to require strict scrutiny, and two states mandate an even higher absolute standard that presumes any discriminatory law to be unconstitutional (Burroughs 2015; Wharton 2005). In addition, federal legislation has mandated equal employment and education in the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Pregnancy Discrimination Act of 1978, and the Violence Against Women Act of 1994. Such piecemeal legislation, however, is subject to the political ebb and flow and can be rolled back, as the Violence Against Women Act was when the Supreme Court held in United States v. Morrison (2000) that Congress had no power to address civil remedies for domestic violence (MacKinnon 2014).

The renewed campaign for an equal rights amendment emphasizes the continued systemic harms to women of economic inequality, violence against women, and pregnancy discrimination and the limits of existing laws to address these concerns (MacKinnon 2014; Neuwirth 2015). Proponents of an equal rights amendment emphasize the need for a permanent constitutional guarantee to control an overarching legal and social principle of women’s equality. The United States, unlike the majority of other countries, has refused to incorporate such an express guarantee in its written constitution or adopt the international women’s bill of rights by ratifying the United Nations’ treaty (MacKinnon 2014; Neuwirth 2015).[4] The absence of an express guarantee permits traditional literalists like Justice Antonin Scalia to opine, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t” (California Lawyer 2011). The ERA offers a corrective to this thinking and the equivocal state of women’s rights under the law. It offers a textual guarantee of sex equality, an inspiration for public policy, and a powerful symbolic support of women’s equality in all social and legal venues (Ginsburg 2014; MacKinnon 2014).

The equality amendment fulfills the hope first envisioned by proponents of a suffrage amendment to fully integrate women into every aspect of the citizenry with full recognition of their humanity (Siegel 2002). Now, almost one hundred years later, perhaps the time is right. Or perhaps the time is right to embrace the larger social justice legacy of the women’s equality movement and expand the amendment to all human rights to include aspects of sexual orientation discrimination and reproductive rights. These broaden the concept of sex discrimination to encompass the ways in which gender is practiced and experienced in our society. Perhaps dovetailing with recent advances and political consensus in civil rights of same-sex marriage will give women’s equality the final push it needs to be enacted.

Notes

[1] One federal court upheld the rescissions, but expiration of the ERA ratification deadline mooted the question before the Supreme Court could review the case. Idaho v. Freeman, 529 F. Supp. 1107 (1981), stayed, Jan. 25, 1982. The evidence against the legality of rescission is that states attempting to rescind their ratification of the Fourteenth Amendment were still included as enacting states (Berry 1988).

[2] The strict scrutiny test requires that state laws based on race be justified with compelling interests that are narrowly tailored to necessary regulation, thus invalidating most laws based on race. Loving v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184 (1964).

[3] For Ginsburg’s early pro-ERA writings, see Ruth Bader Ginsburg, “The Fear of the ERA,” Washington Post, April 8, 1975: A21; Ruth B. Ginsburg and Kathleen W. Peratis, “Equal Rights for Women,” New York Times, December 31, 1975: 21; Ruth Bader Ginsburg, “Let’s Have E.R.A. as a Signal,” ABA Journal, January 1977: 70; Ruth Bader Ginsburg, “Sexual Equality under the Fourteenth and Equal Rights Amendment,” Washington University Law Review  (1979): 161-178.

[4] The United States is one of only seven countries that has not ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), including Iran, Somalia, Sudan, South Sudan, Palau, and Tonga. The treaty was signed by President Carter in 1980, but failed to get the two-thirds congressional vote necessary for ratification (Neuwirth 2015).

November 20, 2018 in Abortion, Constitutional, Legal History | Permalink | Comments (0)

Virginia Could be the State to Give Women Equal Rights Nationwide

NPR, Virginia Could be the State to Give Women Equal Rights Nationwide

Landmark court rulings, laws and constitutional amendments have given women the right to vote, to make decisions about their reproductive health and, to some degree, to receive equal pay for equal work. But women are not guaranteed equal rights under the U.S. Constitution. That's why, for decades, women's rights advocates across the country have supported an Equal Rights Amendment.

 

Nearly 50 years ago, Congress passed the Equal Rights Amendment, barring sex discrimination. But 38 states had to ratify it before it could take effect. Earlier this year, Illinois became state No. 37, and a bipartisan group of lawmakers is campaigning to make Virginia the final, historic vote.

 

For the past 10 days, those lawmakers have traveled the state on a bus tour, trying to grow enthusiasm for the amendment. And they will need a lot of it. Last session, a group of primarily Democratic lawmakers tried to ratify the amendment, but it didn't even make it to the floor for a vote. Today, there seems to be Republican support and more energy around the ratification than before.

 For more on the modern ERA movement and the "Three State Strategy," see 

Advocates Reignite the Fight for the Equal Rights Amendment

Rebooting the Equal Rights Amendment

Illinois Ratifies the ERA

November 20, 2018 in Constitutional, Pop Culture | Permalink | Comments (0)

Thursday, November 15, 2018

Advocates Reignite the Fight for an Equal Rights Amendment

ABA J, Advocates Reignite the Fight for an Equal Rights Amendment

The text of the ERA is simple: “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.” The language was developed by lawyer and suffrage fighter Alice Paul in 1943, although the equality amendment was first introduced in 1923.

 

When, under the amendment process, it was approved in 1972 by two-thirds of the members of the U.S. House of Representatives and Senate, a deadline for ratification by the states was inserted—at first seven years, then extended to 10 years. The ratification fell three states short of the 38 needed, and in 1982, the ERA was declared dead.

 

Now, new impetus is reviving it. Two key strategies have emerged to make the ERA a reality: One approach is to gain the final three ratifications and amend the original congressional time limit; the other is to “start over” with a vote in Congress and gather 38 new state ratifications.

 

“All along, since 1982, there was a little hum of energy,” says lawyer Jessica Neuwirth, author of the 2015 book Equal Means Equal: Why the Time for an Equal Rights Amendment Is Now. “It went from a hum to a whisper,” Neuwirth notes, “and now it’s an ascendant line. It’s steady and it’s strengthening. Not like a roar, but a much greater awareness than there used to be.” Neuwirth is cofounder of the ERA Coalition, a D.C.-based entity that serves as a resource for more than 70 organizational members working on the issue. [http://www.eracoalition.org] ***

 

A “three-state strategy” aims to gather three more ratifications to add to the 35 passed from 1972–1982 and reach the magic number of 38. The concept was developed in 1992 after the Twenty-Seventh Amendment (the “Madison” amendment) on congressional pay was added to the Constitution, 203 years after it was first passed by Congress.

 

In May 2017, Nevada became the 36th state to ratify the federal ERA, and the first since 1977. In May 2018, Illinois followed suit to become the 37th state. 

For more on the history of the ERA, see my recent book chapter: Tracy Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018).

November 15, 2018 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, November 6, 2018

Legal History: The Importance of the Vote and Property for Women's Citizenship

Excerpt from my book:  Tracy A. Thomas, chp. 2, "What Do You Women Want?", Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016)

Nineteenth-century women's rights leader Elizabeth Cady Stanton on the economic, political, and constitutional import of the vote and property ownership for women.

Property as Citizenship

 This connection between taxation, property, and political rights was part of Stanton’s initial philosophy articulated in the Declaration of Sentiments. In the Declaration, she identified the abuse of power from taxation of single women and widows without a voice in governance. “If single and the owner of property, he has taxed her to support a government which recognizes her only when her property can be made profitable to it.” The Declaration made a broad demand for women’s status as “citizens” and full members of the community with all civil, economic, and political rights.[i] For citizens, unlike the more general category of “persons,” have power and participatory rights in the governance through political action. She challenged the deprivation of “the first right of a citizen, the elective franchise,” and demanded women’s “immediate admission to all the rights and privileges which belong to them as citizens.” These rights included “the right to protect one’s person and property; to govern one’s self; to have a voice in the law and rulers; to enjoy all the advantages and opportunities of life of which one is capable. This is citizenship in a republic. The natural right to life, liberty, and happiness.”[ii]

 “The Declaration of Sentiments ushered in a new conception of citizenship, for its crucial themes included natural and inalienable rights, suffrage and national citizenship, and legal protection derived from right of contract.”[iii] Stanton utilized liberal political theories of natural, individual rights, arguing that women, the same as men, were entitled to participation in the public sphere in accordance with rights of self-government.[iv] She also appealed to republican political theories of the virtuous citizen working for the collective common good, arguing that women had abilities, as property holders, taxpayers, and morally superior people meriting citizenship.[v]

 Women’s point of entry into this citizen class, though, was not clear. Citizens were defined by their privileges and obligations of voting, jury service, and military service, all of which excluded women.[vi] Women’s obligations of citizenship had instead been defined in terms of their family. “From the era of the American Revolution until deep into the present, the substitution of married women’s obligations to their husbands and families for their obligations to the state has been a central element in the way Americans have thought about the relation of all women, including unmarried women, to state power.”[vii] Republican values of political citizenship after the Revolutionary War created the cultural ideology of Republican motherhood, which held that women contributed their civic duty through their obligation to their families and in educating and raising citizen sons.[viii] This ideology valued women’s caregiving, even while it confined women to the private family sphere. Stanton attacked this notion of a “woman-citizen” as something supernatural, a “monster, half-human, half-beast,” derived from man’s false creation of the image of womanhood sentimentally worshipping her superior virtue yet fearing her emotional and religious nature in the public sphere.[ix] Understanding the reciprocal nature of citizenship, Stanton argued that women were ready to assume the duties of citizenship, like jury duty and liability for debts, if only granted the benefits.[x]

 Stanton tried to break into this closed circle of citizenship by first latching onto the traditional American basis for granting citizenship rights, property holding.[xi] “In the eighteenth century, the liberal individual (male) was defined by owning property, voting, participating in the public sphere.”[xii] Many states inherited the traditional English system requiring property ownership for voting.[xiii] Property qualifications were viewed as properly extending suffrage to those “seen as having a vested stake in society” and excluding those “too poor to have a will of their own” and too easily coerced by those who controlled their livelihoods.[xiv] These property qualifications allowed women, briefly, in New Jersey to vote between 1776 and 1807, because, as the Supreme Court held, for single, propertied women, “the law supposes them to have wills of their own.”[xv]

Relying on this historical precedent, Stanton argued that women’s ownership of property entitled women to the vote, and thus citizenship.[xvi] “A citizen, says Webster, in the United States is a person native or naturalized who has the privilege of exercising the elective franchise in the qualifications which enable him to vote for senators and to purchase, hold real estate.”[xvii] She endorsed the property connection, arguing “There is no principle of equity more universally admitted than that the owner of property shall have a word to say in its use.”[xviii] Quoting Benjamin Franklin, she said: “If a man’s property can be taken from him without his consent, he is a slave.”[xix]

Stanton also tried to break into citizenship by linking suffrage to taxation.[xx] Echoing the American sentiment from the Revolutionary War, she decried the “tyranny of taxation without representation.” Stanton later developed this theme in an 1873 speech delivered to the Rochester Women Taxpayers’ Association and a later draft lecture, “Taxation,” focusing on the basic idea that “Webster’s defines ‘tax’ as a “sum of money assessed on the person or property of a citizen.” [xxi] She emphasized the citizenship link: “Thus in taxing women the state pays them the compliment of recognizing in them the dignity of citizenship.”

On what principles of justice are there large numbers of men allowed to vote without paying taxes, while the women are compelled to pay taxes without voting? Whatever property the state protects should I think contribute its proportion to the state’s support. Hence as loyal law-abiding citizens we are willing to pay our share for the support of the state. But as our taxes are increased in proportion as many other classes and many kinds of property are exempt. We have a reason to complain of this injustice and to insist that women as large property holders throughout the United States should have a vote on this question.[xxii]

Stanton’s taxation arguments had popular appeal and were easily adopted by women’s rights advocates.[xxiii] Several famous protests by women refusing to pay their taxes were “frequently and widely recounted” by the women’s movement.[xxiv] These protestors included eighty-year old sisters, Julia and Abby Smith, who had their cows seized and sold at auction to pay the taxes, and abolitionist Abby Kelley Foster and her husband Stephen Foster who refused to pay taxes until Abby, and all women, could vote.[xxv] “Popular narratives, valuing as they did the Boston Tea Party, continued to convey that civic authority was related to democratic control of taxation.”[xxvi] These connections between property and taxation voting were partially successful in obtaining women’s right to vote in school or municipal elections, though they enfranchised only relatively well-to-do women.[xxvii] But the arguments failed to achieve Stanton’s greater purpose of establishing women’s full status of citizenship.

After the Civil War, the resulting constitutionalism of the Civil Rights Amendments provided alternative legal arguments to add to these political rationales for voting. Stanton returned to one of the demands from the Declaration of Sentiments insisting that women be given “immediate admission to all the rights and privileges which belong to them as citizens of the United States.”[xxviii] The Fourteenth Amendment, enacted in 1868, seemed to grant exactly this by guaranteeing that “all persons” are “citizens” against whom states cannot abridge “the privileges and immunities of citizenship.” In 1869, Missouri reformer Virginia Minor and her attorney husband, Francis Minor, devised an argument for woman’s suffrage based on the plain language of the newly-enacted privileges and immunities clause.[xxix] Stanton quickly adopted Minor’s argument, appreciating that the Fourteenth Amendment provided the textual hook women needed. She called it the “title deed” to woman suffrage for “without or without intent, a law stands as it is written.”[xxx] This textual argument became the foundation of Stanton’s NWSA legislative and judicial campaigns of “the New Departure” as hundreds of women, including Susan B. Anthony, civilly disobeyed the law by voting under the claimed authority of the privileges and immunities clause.[xxxi]

Stanton however extended the legal argument beyond mere textualism. She “proposed a dynamic model of constitutional interpretation designed to keep the principles of the text current with present social conditions and needs.” Adam Winkler has argued that Stanton theorized in what was then a “radically different way of understanding constitutional interpretation,” by arguing that the constitution should develop in a dynamic way to meet the ever-changing understanding of society. This idea of a changing, dynamic “living constitution” would become “the dominant mode of constitutional construction in the twentieth century.” Stanton’s use of the method not only foreshadowed modern critiques of originalism, but according to Winkler, secured her place as “its most important innovator.”[xxxii] Stanton described the fundamental law as “the organic law of the land” that should be “so framed and construed” to emphasize the progressive development of individual rights.[xxxiii] She argued in her speech to the Joint Committees of the District of Columbia, considering women’s suffrage in D.C., that “As history shows . . . each step in civilization has been a steady approximation to our democratic theory, securing larger liberties to the people.”[xxxiv] She gave the example of men’s suffrage, which had evolved from rights only for propertied white men, then expanded to universal white male suffrage including laborers, and then extended to black men. In another example, she cited the legal developments of the married women’s property acts that evolved from a new understanding of women’s civil rights departing from coverture. “Woman has not been standing still, but has been gradually advancing to an equal place with the man by her side.”[xxxv]

In January 1872, appearing before the Senate Judiciary Committee in support of woman’s suffrage, Stanton “added a stinging condemnation of the dominant method of constitutional interpretation, originalism, which was proving to be the primary stumbling block for suffrage reform.” “Though the world has been steadily advancing in political science, and step by step in recognizing the rights of new classes, yet we stand to-day talking of precedents, authorities, laws, and constitutions, as if each generation were not better able to judge of its wants than the one that preceded it. If we are to be governed in all things by the men of the eighteenth century, and the twentieth by the nineteenth, and so on, the world will be always governed by dead men.[xxxvi] Stanton argued for an evolutionary understanding of the entire Constitution from 1789 to 1870, arguing that the meaning of the privileges and immunities clause, contained originally in Article IV, had changed.[xxxvii]

Stanton needed to depart from the traditional legal constitutional interpretation of originalism because the framers of the Fourteenth Amendment clearly did not intend to include the right to vote in its guarantees. This legislative intent was recent history and familiar to all, especially Stanton’s congressional audience, many of whom were the framers themselves.[xxxviii] Their primary intent had been to grant civil, legal rights to freed slaves; they explicitly did not include the right to vote, which was envisioned separately as a political compromise in the Fifteenth Amendment granting suffrage to black men.[xxxix] The national citizenship of the Fourteenth Amendment was defined not by the vote, but as the reciprocal obligation of allegiance by the individual to the nation in exchange for protection by the state.[xl]

The U.S. Supreme Court agreed, rejecting Stanton and Minor’s claim of a constitutional right to vote. In Minor v. Happersett, the Court easily recognized women as citizens.[xli] As John Bingham, the primary drafter of the Fourteenth Amendment had explained in a Senate Report several years before, there was “no longer any reason to doubt that all persons” born or naturalized in the United States were citizens as declared by the amendment.[xlii] But that was a conclusion without significance, for the catch was that citizens did not automatically have the right to vote. That had been the feminists’ assumption: that voting was the distinguishing privilege of a citizen, and why they focused their goal on establishing women as full citizens.[xliii] Stanton attacked Bingham’s report and its implication that “women are not ‘citizens,’ but ‘members’ of the nation!—mere appendages to the State, the Church and the home.” She snarked, “If this, indeed, be woman’s normal condition, may God grant us a wiser, nobler type of manhood as our prefix than John Bingham, of Ohio.”[xliv]

The Court Supreme Court in Minor agreed that voting was not a privilege of national citizenship protected by the Fourteenth Amendment, but was instead a political right discretionarily granted by the state.[xlv] The Court defined “privileges and immunities” by reference to its antecedent in Article IV of the Constitution and the intent of the founders which did not include the vote as a privilege of citizenship. The republicanism of the founders believed in virtual representation by which only an elite few property owners were qualified to govern with political rights of voting. The Court applied the traditional originalist interpretation of the intent of the framers, both constitutional and amendment, refusing to engage Stanton’s dynamic interpretation.

Undeterred, Stanton continued to press for what she thought was self-evident, even as she simultaneously pursued alternative political strategies like a new Sixteenth Amendment for women’s suffrage. “By every principle of fair interpretation we need no amendment, no new definitions of the terms ‘people,’ ‘persons,’ ‘citizens,’ no additional power conferred on Congress” to enable Congress to grant women suffrage.[xlvi] She continued to believe that the text of the Fourteenth Amendment, properly interpreted, should grant women the right to vote. Her argument, however, “was still too radical for its time.”[xlvii]

 

[i]  Declaration, 3; McClain and Grossman, 1, 8.

[ii] ECS, “Women Do Not Wish to Vote,” National Bulletin, Apr. 1894.

[iii] Isenberg, 32.

[iv] ECS to SBA, July 4, 1858; ECS, “The Power of the Statute Legislature,” Woman’s Tribune, Mar. 1, 1885.

[v] ECS, “A Household of Women,” Woman’s Tribune, Oct. 6, 1900; Mrs. Stanton’s Suffrage Convention Letter, Washington Chronicle¸ Jan. 28, 1883; Davis, 2, 19-20.

[vi] Kerber, Ladies, 94; Isenberg, 13.

[vii] Kerber, Ladies, 11.

[viii] Kerber, Republic, 283; Norton, Liberty’s, 247-49.

[ix] Isenberg, 198; ECS, 1860 NY Address; ECS, “The Degradation of Woman,” Rev., Jan. 15, 1868; Miller, 173.

[x] ECS, “Editorial Correspondence,” Rev., Mar. 17, 1870; “Rev. Thompson.”

[xi] ECS, Bible and the Church Degrade Woman.

[xii] Clark, “Self-Ownership,” 905.

[xiii] Isenberg, 26.

[xiv] Kerber, Ladies, 94.

[xv] Isenberg, 24

[xvi] ECS, Speech to the Women Taxpayers’ Association in Rochester, New York, Oct. 31, 1873.

[xvii] ECS, Taxation Lecture, 15-16 (1877).

[xviii] Taxation Lecture, 23h.

[xix] “Household.”

[xx]  Declaration; Bible and Church, 1-12.

[xxi] Taxpayers’ Speech.

[xxii] Taxation Lecture, 23e-g.

[xxiii] Rochester Proceedings, 15.

[xxiv] Kerber, Ladies, 100-04; Jones, 265, 269.

[xxv] Jones, 269.

[xxvi] Kerber, Ladies, 113.

[xxvii] Jones, 272-73.

[xxviii] Declaration, 4.

[xxix] “Francis Minor,” Rev., Oct. 21, 1869; “Mrs. Francis Minor,” Rev., Oct. 28, 1869; “Fundamental Rights,” Rev., Jan. 20, 1870.

[xxx] Argument of Mrs. Stanton Before the Judiciary Committee, reprinted as “Woman Suffrage,” Daily Morning Chronicle, Jan. 13, 1872.

[xxxi] Winkler, 1456, 1475-77, 1483; DuBois, “Taking the Law,” 23-34.

[xxxii] Winkler, 1456-59, 1468, 1480, 1515.

[xxxiii] ECS, Speech to Joint Committees of D.C., in “The Women in Washington,” Rev., Jan. 27, 1870.

[xxxiv] Id.; HWS, v.II, 411-16.

[xxxv] HWS, v.II, 510.

[xxxvi] “Woman Suffrage; HWS, v.II, 510.

[xxxvii] Winkler, 1482-83.

[xxxviii] Id. 1472-74.

[xxxix] Jack M. Balkin, “How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure,” 39 Suffolk University Law Review 27, 46 (2005); John Bingham, H.R. Rep. No. 41-22, Report, Committee on the Judiciary, 41st Cong., House of Rep., Jan. 30, 1871.

[xl] Bingham Report.

[xli] 88 U.S. 162 (1875).

[xlii] Bingham Report.

[xliii] “Rev. Thompson”; HWS, v.I, 412; see 41st Cong., 3d Session, H.R. Rep. 22, Jan. 30, 1871, by Reps. Loughridge and Butler (pt. 2, minority) (Judiciary Committee) (Minority Report, 9); HWS, v. II, 594.

[xliv] ECS, Letter to Editor, Woodhull and Claflin’s Weekly, Mar. 11, 1871.

[xlv] 88 U.S. 162 (1875); Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872).

[xlvi] ECS, “Statement of Mrs. Elizabeth Cady Stanton,” Woman Suffrage, to the Senate Select Committee on Woman Suffrage, Apr. 2, 1888.

[xlvii] Winkler, 1465.

November 6, 2018 in Books, Constitutional, Legal History | Permalink | Comments (0)

The Trial of Susan B. Anthony

Ann D. Gordon, The Trial of Susan B. Anthony, Federal Judicial Center (2005)

United States v. Susan B. Anthony was a criminal trial in the federal courts. In the federal election in November 1872, Anthony, the best-known advocate of woman suffrage, registered to vote and then voted. The government charged her with the crime of voting without “the legal right to vote in said election district”—she, in the words of the indictment, “being then and there a person of the female sex.” Her trial revealed the complexity of federalism in the post-Civil War years. She was convicted in federal court under federal law for violating state law about who was eligible to vote. New York state law prohibited women from voting, and a recent federal law provided for the criminal prosecution of anyone who voted in congressional elections “without having a lawful right to vote.”

 

Primarily a case about woman suffrage and sexual discrimination, United States v. Susan B. Anthony is also a case about Reconstruction and the balance of federal and state authority. Prior to the Civil War, the demand for woman suffrage was directed to state governments, each of which set the qualifications of voters in the respective states. Reconstruction redirected the demand. The federal government assumed some authority over the voting qualifications enacted by the states, and woman suffragists saw in that change an opportunity to extend voting rights not only to black men but also to black and white women. They called for universal suffrage.

 

Anthony and the members of the National Woman Suffrage Association, after failing to gain explicit reference to the voting rights of women in the Fourteenth and Fifteenth Amendments, set about testing the meaning of what those amendments did say and how the amendments might have changed the rights of women. Anthony was among a group of women in the country trying to establish, through test cases in the federal courts, that the amendments had so redefined citizenship and rights that women were protected by the federal government in their right to vote. 

November 6, 2018 in Constitutional, Courts, Legal History | Permalink | Comments (0)

Monday, November 5, 2018

The Inevitable Failure of California's Law Mandating Gender Diversity in the Corporate Boardroom

Joseph Grundfest, Mandating Gender Diversity in the Corporate Boardroom: The Inevitable Failure of California’s SB 826

America's corporate boards are insufficiently diverse. Too few women and ethnic minorities are at the table. California's SB 826 seeks to remedy this situation by imposing penalties on publicly traded corporations with headquarters in California, regardless of where they are chartered, if their boards have fewer than a legislatively mandated number of self-identified women directors. While well intentioned, this legislation will not achieve its intended effect because it is unconstitutional as applied to the vast majority, if not all, of publicly held corporations headquartered in California. The internal affairs doctrine will limit the law’s application to only 72 corporations headquartered and chartered in California, or 1.59 percent of all publicly traded corporations. The bill will increase the number of board seats occupied by women by trivial amounts, if at all. These trivial changes will, however, come at great risk to the evolution of affirmative action jurisprudence. California's own legislative analysis concludes that "the use of a quota-like system, as proposed by this bill … may be difficult to defend." A successful equal rights challenge means that SB 826 will have no effect at all. The legislation thus offers a poor bargain for diversity advocates: gain a trivial number of board seats, if any, but increase the risk of judicial rulings inimical to broader affirmative action initiatives. There is a better way. California can use its significant capital market influence to induce major institutional investors to mount more aggressive activist campaigns that can rapidly and materially increase boardroom diversity. These campaigns have a demonstrated history of success. They will not generate years of litigation, will not be limited to California-chartered corporations, and will pose no risk to affirmative action jurisprudence. Properly structured shareholder activism is the better, smarter way to proceed.

November 5, 2018 in Business, Constitutional | Permalink | Comments (0)

Tuesday, October 30, 2018

More Perfect Podcast: The Nineteenth Amendment with a Song by Dolly Pardon

The Most Perfect Album: Episode 4

This season, More Perfect is taking its camera lens off the Supreme Court and zooming in on the words of the people: the 27 amendments that We The People have made to our Constitution. We're taking on these 27 amendments both in song and in story. This episode is best listened to alongside 27: The Most Perfect Album, an entire album (an ALBUM!) and digital experience of original music and art inspired by the 27 Amendments. Think of these episodes as the audio liner notes.

Episode Four begins, as all episodes should: with Dolly Parton. Parton wrote a song for us (!) about the 19th Amendment and women (finally) getting the right to vote.

 

Also in this episode: Our siblings at Radiolab share a story with us that they did about how the 19th Amendment almost died on a hot summer night in Tennessee. The 19th Amendment was obviously a huge milestone for women in the United States. But it was pretty well-understood that this wasn’t a victory for all women; it was a victory for white women.

 

Read the lyrics to Dolly Parton's 19th Amendment song here.

October 30, 2018 in Constitutional, Legal History, Media, Pop Culture | Permalink | Comments (0)

Tuesday, October 9, 2018

Is California's Mandate of Gender Quotas for Corporate Boards Constitutional?

Vikram Amar & Jason Mazzone, Is California's Mandate That Public Companies Include Women on their Boards of Directors Constitutional?

Earlier this week, California Governor Jerry Brown signed into law SB 826, a landmark measure that requires each publicly held corporation whose principal executive offices are located in California to have, by the end of 2019, at least one woman on its board of directors. By 2021, each such corporation is required to have at least two women board members if the corporation has five directors, and at least three women board members if the corporation has six or more directors.

 

In today’s column, Part One in a series, we begin to spot and analyze some of the cutting-edge constitutional questions SB 826 raises. More specifically, in the space below we address aspects of federal equal protection review, focusing on what it means under federal intermediate scrutiny to for a state to “substantially further” a government objective. In Part Two we ask which government objectives—both in enacting and implementing SB 826—are appropriate for a state to pursue consistent with equal protection law and constitutional principles more generally, and we also discuss a separate potential constitutional problem: the impact that SB 826 has on corporations chartered in other states. Throughout, we shall train our analysis on issues under the federal Constitution, even though we recognize (and in some instances note) that California constitutional limitations may pose additional problems for the measure.

For prior posts on the new California law, see Cal Becomes First State to Require Publicly Held Corporations to Include Women on Boards

October 9, 2018 in Business, Constitutional, Gender | Permalink | Comments (0)

Wednesday, June 27, 2018

Rebooting the Equal Rights Amendment

Allison Lange, The Equal Rights Amendment Has Been Dead for 36 Years. Why it Might be on the Verge of a Comeback

On May 30, Illinois became the 37th state to pass the Equal Right Amendment (ERA), which says, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Next, advocates aim to secure the final state needed to ratify the amendment. They will probably target Virginia, North Carolina or Georgia.

True, the deadline to ratify the ERA came and went in 1982. But that may not be a dealbreaker. Some legal strategists argue that since other amendments had no time limit for ratification, the ERA should not have had one, either. Others argue that Congress simply needs to extend the deadline.

Suddenly, almost a century after it was first proposed, the ERA might be within reach.

The law is overdue, culturally and legally. Many Americans assume that the United States already has gender-equality rules. After all, the Civil Rights Act, Title IX and the Equal Pay Act all offer protections against discrimination. But these are pieces of legislation. New laws and Supreme Court rulings can diminish their power.

For more on the legal and social history of the ERA as well as the current movement, see my book chapter with historian TJ Boiseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018)

Gerald Magliocca, Buried Alive: The Reboot of the Equal Rights Amendment

This Article addresses the recent effort to revive the proposed Equal Rights Amendment (ERA) to the Constitution. Following ratifications by Nevada (2017) and Illinois (2018), the ERA stands close to the three-fourths vote in the states required for ratification under Article Five. But these recent ratifications are of uncertain validity, as Congress imposed a deadline for the ERA's ratification that expired in 1982.

The paper argues that Congress can waive the expired ratification deadline but should not do so until should not do so until there is no doubt that 38 states have voted for ratification.There is room for doubt on that score because five states rescinded their ratification votes in the 1970s. Congress is free to disregard these rescissions on the ground that a state may not repeal its ratification of a proposed constitutional amendment. Ignoring these state rescissions in addition to waiving the ratification deadline, though, would raise substantial concerns about the ERA’s legitimacy and may lead a future Congress to attempt the reversal of that recognition.

Thus, the wise course is for Congress to refrain from taking action on the ERA until 38 states can be counted as yes votes without the five rescinding states. If Congress decides to include these five states as part of the ratification total, then at least two-thirds of the Senate and the House of Representatives should be required to support that decision—in accord with a precedent established by Fourteenth Amendment--to quiet the doubts about the validity of the ERA’s ratification.

June 27, 2018 in Constitutional, Gender, Legal History, Legislation | Permalink | Comments (0)

SCOTUS Overturns CAL Disclosure Law for Pro-Life Pregnancy Counseling Centers

In National Institute of Family and Life Advocates (NIFLA) v. Becerra, the US Supreme Court in a 5-4 decision blocked a California law that required “crisis pregnancy centers” to provide information about abortion.

The decision written by Justice Thomas and joined by Justices Roberts, Kennedy, Alito, and Gorsuch is here at NIFLA v. Becerra.  Concurrence by Justice Kennedy. Dissent written by Justice Breyer.

Commentary on the decision:

Mary Ziegler, Wash Post, The Supreme Court's Big Abortion Hypocrisy

On Tuesday, the Supreme Court struck down a California law regulating antiabortion crisis pregnancy centers, which are Christian counseling centers that try to persuade women to continue their pregnancies. California had required pregnancy centers with a medical license to tell women that the state provided free or low-cost services, including abortion, to low-income women. If a center wasn’t licensed, the facility had to post a sign saying so.

 

For all the justices, the case boiled down to a question of fairness. Writing for the majority, Justice Clarence Thomas accused California of discriminating against Christians. After all, the state demanded that crisis pregnancy centers — and no similar facilities — post notices about other services. Justice Stephen G. Breyer argued that the discrimination actually ran the other way: The Supreme Court had upheld laws requiring abortion providers to recite a state-mandated script but wouldn’t do the same when antiabortion activists made their case.****

 

But the court’s decision to treat crisis pregnancy centers as religious institutions has created two  contrasting sets of rules when it comes to free speech on abortion. While abortion providers have their speech rights curbed — they are required by law to say certain things to their patients — the majority seemed to suggest that crisis pregnancy centers are different. 

 

Emma Green, The Atlantic, The Supreme Court Hands a Win to the Pro-Life Movement

These radically different readings of the case suggest that the Court is still wrestling with how it thinks about abortion: as a medical procedure, an act with heavy moral consequences, or both. Looking ahead, the Court’s decision in NIFLA may be most consequential as a boundary line for the way the government treats pro-life groups. In this respect, Kennedy’s concurring opinion is most telling, wrote Mary Ziegler, a law professor at Florida State University, in an email. “He is concerned about freedom of thought and religion for conservative Christians, and he thinks the fact Act shows evidence of bias against believers who work in [crisis-pregnancy centers],” she said. “This may turn out to be the most significant part of the opinion.”

 

Volokh Conspiracy, NIFLA v. Becerra and Speech Compulsions

 

Caroline Corbin, Compelled Disclosures, 65 Alabama Law Review 1277 (2014)

 

Abortion Providers Have Less First Amendment Rights than Abortion Opponents

One of the centerpieces of the Supreme Court’s First Amendment decisions is that the Constitution does not permit “viewpoint discrimination.” The government may, in certain limited cases, enact laws that place restrictions on speech — but discriminating between two opposing sides of a debate is a big no-no.

 

On Tuesday, the Supreme Court created an “except when we do it” carve-out to this rule. When you boil down the opinion’s rhetoric, the holding of National Institute of Family and Life Advocates (NIFLA) v. Becerra is that abortion opponents enjoy the full force of a robust First Amendment, while abortion providers must accept a watered-down right to free speech.

June 27, 2018 in Abortion, Constitutional, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, June 12, 2018

The Unfinished Story of Roe v. Wade

Reva Siegel & Linda Greenhouse, The Unfinished Story of Roe v. Wade, in Reproductive Rights and Justice Stories (Melissa Murray, Kate Shaw & Reva Siegel eds., forthcoming 2019)

We tell the story of Roe v. Wade for a forthcoming volume in the Foundation Press Law Stories series. To those who support abortion rights, Roe demonstrates the Court’s crucial role in protecting individual rights in the face of determined political opposition. For its critics, Roe was the work of an “unelected” Court creating new constitutional rights; supposedly, by deciding matters properly left to democratic determination, the Court inflamed conflict over abortion and riled our politics.

We explain the origins of the abortion right and conflicts over it differently. The story we tell is not simply a litigation history of a landmark case, but as importantly a story about the democratic foundations of our constitutional law. We start our account of the abortion conflict before Supreme Court litigation begins. Conflict enters the picture well before the courts do, as people argue over the Constitution’s meaning in their everyday lives. We recount how citizens who lacked power in any conventional sense were able over time to change the way the nation and its courts understood longstanding guarantees of liberty, of equality, and of life.

Roe itself, filed in federal district court in Dallas in March 1970, was one of many cases in the late 1960s and early 1970s that invoked the Constitution to challenge the century-old regime of criminal abortion statutes; Roe just happened to be first in line on the Supreme Court's docket. These cases emerged from principled and heated dialogue among powerful social movements that initially did not even have courts in view. The story of Roe v. Wade is the story of conflict born in democratic politics that engendered the rights claims that the Court would ultimately recognize. The conflict continues to this day, even as advocates and their arguments have changed as few would have expected. 

This framework offers a fresh context for reading Roe. Enlarging our perspective in this way allows us to recover claims for and against abortion rights to which the Court’s opinion in Roe responded, as well as claims that the Court ignored—claims for women’s equality and for protecting potential life that played an important role in reshaping the abortion right nearly twenty years later in Planned Parenthood of Southeastern Pennsylvania v. Casey

The account of Roe’s history the chapter offers can inform both normative and predictive debate about Roe’s future.

June 12, 2018 in Abortion, Constitutional, Legal History | Permalink | Comments (0)

Monday, June 11, 2018

Illinois Ratifies the Equal Rights Amendment

Illinois Ratifies Equal Rights Amendment Decades After Deadline

Illinois state lawmakers voted Wednesday to ratify the Equal Rights Amendment — decades after Congress’s deadline to ratify the measure expired.

The Illinois House passed the measure 72-45, the Chicago Tribune reported. The state Senate had voted in favor of ratification last month, and it does not require the support of Gov. Bruce Rauner (R).

The passage sets the stage for a possible legal battle over the amendment, since Congress’s deadline for states to ratify the amendment expired in 1982.

But supporters argue that because a 1789 amendment was ratified more than two centuries later, in 1992, the Equal Rights Amendment could still be added to the Constitution, the Tribune noted.

Congress approved the amendment in 1972. But only 35 states ratified it ahead of the deadline, three short of the number required to add it to the Constitution.

Nevada similarly ratified the Equal Rights Amendment last year after the deadline.

See also Illinois Approves Equal Rights Amendment, 36 Years after Deadline

Some critics have also questioned the necessity of such an amendment, saying federal laws have already been passed to extend equal rights to women. Stone said ratification of the amendment “would make some difference in marginal cases where the law allows discrimination today” and “lock in” many of the federal protections women have gained over the decades.

“The main reason for adopting the Equal Rights Amendment today if one could legally, constitutionally do it would be the symbolic importance of it,” Stone said. “The rejection of it is in some ways insulting. So, the symbolic importance of it is to who we are as a nation — what our aspirations are, what our values are. That in itself is an important affirmation of who we are.”

For the legal history of the ERA from beginning to end, see my chapter with TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women's Political Activism (Holly J. McCammon & Lee Ann Banaszak, eds.) (Oxford Press 2018)

The ERA Coalition believes the time is ripe again for an equal rights amendment, given the next generation’s interest and recent political activity (Neuwirth 2015). In 2014 Oregon passed a state ERA referendum with 64% of the vote. Illinois and Virginia also passed state ERA laws, two states that had not previously ratified the federal ERA. Federal ERA  proponents advocate a “three-states-more” strategy, which assumes the continued validity of the prior ratifications and seeks ratification of ther required three additional states. One state, Nevada, ratified the ERA in March 2017. This extended ratification strategy is supported by the delayed the ratification of the Twenty-Seventh Amendment (salary change for Congress must take effect the following term),  as it was sent to the states for ratification in 1789, but not ratified until 1992, when the last states joined (Burroughs 2015).

June 11, 2018 in Constitutional, Legal History | Permalink | Comments (0)

Friday, May 11, 2018

Developing Enhanced Due Process Protections for Title IX Sexual Assault Cases at Public Institutions

Jim Newberry & William E. Thro, After the Dear Colleague Letter: Developing the Enhanced Due Process Protections for Title IX Sexual Assault Cases at Public Institutions, Journal of College & University Law (forthcoming).

Since the formation of the American Republic, Americans have maintained a fundamental mistrust of government power. In the Title IX realm, the Obama Administration exacerbated those concerns. In its efforts to enforce Title IX and to reduce sexual misconduct on campuses, the Obama Administration issued a “Dear Colleague Letter” in April 2011 and a follow up Question and Answer document in April 2014, both of which set out OCR’s view of the obligations of institutions receiving federal financial assistance under Title IX and its implementing regulations. This 2011 Dear Colleague Letter “explains the requirements of Title IX pertaining to sexual-harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.” 

As Fifth Circuit Judge Edith Jones observed, this 2011 Dear Colleague Letter, “was not adopted according to notice-and-comment rulemaking procedures; its extremely broad definition of ’sexual harassment’ has no counterpart in federal civil rights case law; and the procedures prescribed for adjudication of sexual misconduct are heavily weighted in favor of finding guilt.” Specifically, the Dear Colleague Letter and the 2014 OCR Q & A document: (1) suggest institutions handle sexual assault cases with a single person serving as detective, prosecutor, judge, and jury; (2) maintain hearings are not required; (3) imply “the school should not start the proceedings with a presumption of innocence, or even a stance of neutrality . . . [but with an assumption] any complaint is valid and the accused is guilty as charged;” (4) forbid the consideration of the complainant’s sexual history with anyone other than the accused student; (5) discourage cross-examination; (6) allow an appeal of not guilty verdicts; and (7) mandate a preponderance of the evidence—rather than clear and convincing evidence or beyond a reasonable doubt—as the standard for determining guilt. Although the 2011 Dear Colleague Letter and the 2014 Q & A result in an increased focus on the problems of sexual assault on campus, some scholars have suggested these documents undermine due process. 

On September 22, 2017, the Secretary of Education released new guidance that revoked both the 2011 Dear Colleague Letter and the 2014 Q & A document. Instead, OCR established Revised Sexual Harassment Guidance as the guiding light for future assessments of institutional compliance. Further, the Secretary announced her plans to initiate a “rulemaking process that responds to public comment.” The proposed rulemaking process will undoubtedly address multiple stakeholder concerns with the approach to sexual misconduct, but one anticipates that due process concerns for public institutions will be near the top of the list of concerns addressed in rulemaking effort. 

The purpose of this Essay is to set out a vision for what due process in the Title IX sexual assault context should look like. In accomplishing this purpose, the authors—drawing on existing case law, policy arguments, and their own experiences as higher education lawyers—propose a set of due process protections which will equitably balance the interests of (a) Complaining Witness seeking redress for multiple forms of sexual misconduct, (b) Respondents seeking protection against lifelong stigmas arising from unfair campus proceedings, and (c) institutions of higher education seeking to eliminate all forms of educational program discrimination based on sex. 

May 11, 2018 in Constitutional, Education, Violence Against Women | Permalink | Comments (0)

Thursday, May 10, 2018

Law Professors Weigh in on School Dress Codes and Mandatory Bras

Wash Times, School May Make Bras Mandatory After Forcing Student to Cover Nipples with Band-Aids

The American Civil Liberties Union stepped in this week to defend the choice of students at a Florida high school to go bra-free, saying the school’s threat to impose a mandatory bra policy for girls amount to sex discrimination.

 

The ACLU says Braden River High School in Bradenton violated a 17-year-old student’s rights last month after it required her to cover her nipples with adhesive bandages, saying her undergarment-free look had become a distraction to fellow students, including boys who laughed or stared at her.

 

Lizzy Martinez was pulled from class, given an extra shirt and, when that wasn’t deemed enough, given the bandages. She was then sent back to her classroom after what she called a humiliating experience.

 

“Stop sexualizing my body,” she said, taking to Twitter to ding her school.

 

She attempted to lead a boycott, urging fellow students to come to school without bras or speak out about her treatment, but the school warned that this too could be deemed a distraction.

. . . . 

 

Elizabeth M. Schneider, a professor at Brooklyn Law School, said schools need to be wary of citing distractions as the basis for their rules. She said educational institutions, like law schools, used to exclude women on the basis that their presence would distract male students and thus inhibit learning.

 

“The high school is playing into a very old and illegal concept in using the theme of distraction as a ground for differential treatment,” Ms. Schneider said.

 

She also said it would be unconstitutional to make it mandatory for female students to wear bras.

 

“Unless you are going to do a body check of every woman student who comes through the door, which would be even far more illegal, it’s impossible to check,” Ms. Schneider said.

 

Tracy A. Thomas, a professor at the University of Akron School of Law, said Lizzy’s situation is representative of the #MeToo movement with women coming forward sharing experiences of sexual harassment.

 

“Girls are surprised and hurt when they learn that their fellow male students and the administrators view them through this sexualized lens,” she said.

 

She suggested school policies punish boys for inappropriate comments, rather than shame female students.

A related earlier blog post is here.

May 10, 2018 in Constitutional, Education | Permalink | Comments (0)

Tuesday, May 1, 2018

School Dress Codes and Bras

ACLU Warns Florida School District its Dress Code and Protest Policies are Unconstitutional

The ACLU is intervening after [Lizzy] Martinez, a 17-year-old junior at Braden River, was disciplined for not wearing a bra under her shirt to school due to a painful sunburn. School administration removed her from class, told her she was distracting other students, and required her to put Band-Aids over her nipples for the rest of the day. The school maintained that it was doing this in Martinez’s best interest — but then proceeded to block her on Twitter when she complained that she felt sexualized, and it discouraged students from participating in a student protest against the stigmatization of female bodies.

The ACLU letter to the school district is here and it is well worth the read.

As described above, the justification proffered for the enforcement of the dress code against Ms. Martinez was rooted in sex stereotypes that male students were “distracted” by her nipples and a paternalistic desire to “protect” Ms. Martinez from the laughter and stares of her male classmates. The justification reflects overly broad and archaic generalizations about boys’ inability to control their sexual impulses and girls’ inability to make their own decisions about the clothing that makes them feel safe and comfortable. These stereotypes reinforce a culture of victim blaming in which schools convey the message to female students that they are at fault for experiencing sexual harassment if they make certain clothing choices. The Supreme Court has long struck down policies based on “‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”

 

The biased enforcement of the dress code against Ms. Martinez and other female students jeopardizes their equal access to education by forcing them to miss important class time. As described above, Ms. Martinez missed multiple days of school, including three tests. It also prioritizes male students’ freedom from “distraction” over female students’ physical comfort.

 

 

May 1, 2018 in Constitutional, Education, Gender | Permalink | Comments (0)

Wednesday, April 18, 2018

SCOTUS Denies Cert in Abortion Protest Case Leaving in Place Noise Restriction Law

Supreme Court Declines Appeal of Ruling Against Pastor Who Preaches Outside Planned Parenthood

The U.S. Supreme Court has declined to hear an appeal of a ruling that overturned a lower court decision granting a preliminary injunction to a Maine minister who asserted that he was being unlawfully targeted by police outside of a Planned Parenthood facility for his pro-life preaching.

 

The high court declined certiorari in the case of March v. Mills, et. al. without comment on Monday, allowing a First Circuit ruling against the preacher’s public proclamations to stand.

 

However, as the courts ruled solely on the merits of the law and not how it was being applied specifically to Andrew March of Cell 53 Church, his attorneys will refile and continue the fight.

 
“The case is far from over,” Kate Oliveri of the Thomas More Law Center told the Bangor Daily News. “There are several challenges that we will go back to the District Court with.”...

 

In May 2016, U.S. District Judge Nancy Torresen, appointed to the bench by Barack Obama, sided with March, opining that the “intent to interfere” portion of the law would pertain to the content of the speech, and would therefore only relate to pro-life speech, which would consequently be an unconstitutional content-based restriction.

 

“Continued enforcement of a content-based restriction on speech would result in irreparable harm to the Plaintiff,” Torreson ruled.

 

She said that there are other ways to keep order on the public sidewalk, as police “can further their interests of maintaining order and protecting individual patients through the criminal code, most obviously the disorderly conduct and harassment statutes.”

 

However, in August, the First Circuit Court of Appeals overturned Torreson’s ruling, stating that they rather found the law to be content-neutral and that it does not ban abortion opponents from conversing with others, as opposed to lifting up one’s voice to preach—if in doing so the person’s voice can be heard inside the building.

 

“[T]he requirements laid out on the face of the noise provision do not indicate that the measure would apply to speech expressed at a normal, conversational tone—or even at a louder volume—absent the speaker’s intent to disrupt the provision or receipt of medical services,” it wrote.

The First Circuit Court of Appeals case is here, March v. Mills (2017)

April 18, 2018 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Tuesday, April 10, 2018

Leveling Down Gender Equality

My latest article thinking about gender and remedies.

Tracy A. Thomas, Leveling Down Gender Equality

Introduction

The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute.  The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers.  It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case. 

This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of.  It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants.  In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools.  In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men.  And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.

Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality.  This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors.  When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off.  But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.    

The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination.  This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision.  It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end.  Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy.  It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional.  The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.   

This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality.  But this is where the Court went wrong.  The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection.  Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board.  Equality itself, as a constitutional right, dictates more than just empty formalism.  And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised.  For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court.  Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.  

This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers.  Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course.  It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy.  Given these constitutional norms, the Article then argues that the remedial calculus should be changed.  Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut.  Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself.  Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.

 

April 10, 2018 in Abortion, Constitutional, Courts, Family, Gender, SCOTUS, Theory | Permalink | Comments (0)

Friday, April 6, 2018

Denying Copyright Protection to Pornography to help Gender Inequality

Kayla Louis, Pornography and Gender Inequality: Using Copyright Law as a Step Forward, 24 William & Mary J. L. 267 (2018)

Introduction:

The pornography industry generates billions of dollars of revenue annually. The industry relies heavily on protection from copyright law in order to distribute its materials without them being freely taken by others. In other words, copyright law currently operates as an economic incentive to pornographers. Unfortunately, this lucrative industry has negative effects on gender equality. Pornography promotes harmful gender roles for both women and men. Women are portrayed as merely sexual objects who enjoy any type of penetration imaginable, even if it is rape. They are objectified and dehumanized. Men are shown as animalistic, performance-based, and without morals. As a whole, pornography can lead to behavioral, psychological, and social problems. Beyond the social harms to both men and women, the performers themselves suffer physical harms. As a form of prostitution, filmed pornography contributes to the demand for trafficking, and many women are coerced into the industry.

The government’s denial of copyright protection to speech based on content would potentially violate the First Amendment. However, the Supreme Court has made clear that not all content deserves free speech protections. Rather, “obscene” materials, as described in Miller v. California, are not protected under the First Amendment.

This Article argues that pornography is an actual problem that warrants denial of copyright protection as a method to disincentivize pornographers.

April 6, 2018 in Constitutional, Media | Permalink | Comments (0)