Gender and the Law Prof Blog

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

Tuesday, October 27, 2020

The Centrality of Marriage to the Meaning of the Nineteenth Amendment

Nan D. Hunter, Reconstructing Liberty, Equality, and Marriage: The Missing Nineteenth Amendment Argument, 108 Georgetown L.J. 73  (2020)

The social movement that led to adoption of the Nineteenth Amendment sought not only women’s right to vote but also the end to a system of marriage law based on coverture. Under coverture, married women were deprived of property and contract rights and were de jure subservient to their husbands. Coverture also provided the predicate for denial of the vote. The model voter was the independent yeoman or worker able to express his own interests in a democratic system. Women were thought to be properly confined to the domestic sphere and dependent on their husbands, who were presumed to vote on behalf of all household members. On this understanding, coverture and the state functioned as interlocking systems of governance. The nineteenth century Women’s Rights Movement was a campaign to reshape American democracy; eliminating coverture and extending full citizenship rights to women were necessary to achieve that goal. To use a phrase that we now associate with same-sex couples, it was the nation’s first marriage equality movement.

Adoption of the Nineteenth Amendment marked a new social under-standing that constitutional principles and democratic norms must apply to women’s role in marriage as well as to women as citizens. The movement began by articulating a concept of collective liberty, which grew out of experiences in the anti-slavery movement and which expanded on the Founders’ more individualist concept of liberty in the Declaration of Independence. After the Civil War, the equality discourse of the Reconstruction Amendments and the rejection of women’s demands for the vote by both Congress and the Supreme Court reshaped the dominant theme of women’s rights efforts into a campaign for equality. The refusal by federal lawmakers to address women’s issues left them no recourse except to lobby state legislators, which women’s groups undertook on both suffrage and marriage law. But the diffuse, localized nature of family law presented insuperable barriers to ending coverture in one pre-emptive action.

The Nineteenth Amendment reflects these dual goals in its text and sub-text. The former prohibits denial of the vote based on sex, and the latter, by enabling women’s full participation in political life, rebuts the heart of the rationale for coverture: that women’s role in society lay solely in the domestic sphere of home and marriage.

Failure to understand the centrality of marriage-law reform to the social and political meaning of the Nineteenth Amendment has impoverished the constitutional grounding for contemporary challenges to the legal regulation of marriage, including the Supreme Court’s decision in Obergefell v. Hodges. In Obergefell, which prohibited the exclusion of same-sex couples from marriage, the Court missed an opportunity to draw on the history and meaning of the Amendment to frame the issue as implicating dual systems of governance, both of which must be bound by constitutional principles. Instead, the Court described marriage as a largely prepolitical realm of private, idealized relations. The opinion of the Court failed to comprehend the extent to which marriage today continues to function as an institution of the state and a zone of governance, no longer because of coverture but because it is foundational to the privatization of collective responsibility that is embedded in the nation’s primary systems of social insurance.

October 27, 2020 in Constitutional, Family, Legal History | Permalink | Comments (0)

Understanding the Standing Issue in the Dismissal of the ERA Lawsuit

The prospects of judicial approval of the Equal Rights Amendment have taken a quiet step backward with a ruling that said women - individually or in advocacy groups - cannot sue the government to declare the amendment ratified because they lack a "personal stake" in its passage.
 
The proposed constitutional ban on sex discrimination, first introduced in 1923, could still be revived by the courts or Congress. But the latest judicial decisions are another signal that some actions by federal or state governments - like changing the Constitution, approving construction in a park or forest or even refusing to defend a voter-approved ban on same-sex marriage in California - can be difficult or impossible for private citizens to challenge in court.
 
To establish legal "standing" - the right to sue - in federal court, "you have to have a personal stake in a controversy ... some skin in the game," said Evan Lee, an emeritus professor at UC Hastings College of the Law in San Francisco who has studied the issue.
 
"No matter if you've devoted your life to pursuing this particular cause," like environmental protection or the Equal Rights Amendment, "that's not skin in the game" according to the Supreme Court, said Lee, who is critical of the court's restrictions. In most cases, he said, the best way to establish standing is to claim the government's actions will deprive you of money or property.
 
"People can't sue just by saying the government is violating the Constitution," said Erwin Chemerinsky, dean of the UC Berkeley School of Law. "I wish the court had a different view of standing," but under its established precedents, "an injury shared in common with everybody is a generalized grievance" that cannot be challenged in court.
 
Even if that "grievance" is a federal official's rejection of a constitutional amendment that's the reason for your group's existence.***
 
But U.S. District Judge Denise Casper ruled in August that the women, while devoted advocates of the ERA, had no more legal interests or rights at stake than the rest of the population and could not show an "individualized and concrete stake in the outcome."
 
Casper said the Supreme Court used the same standard in 1971 to dismiss a suit by the Sierra Club challenging the government's approval of a new highway and power lines in Sequoia National Forest - construction that may have lessened the forest's beauty and visitors' enjoyment but did not harm their individual rights, the court said. Casper also said the assault victim could not attribute her injuries, physical or legal, to the archivist's refusal to recognize the amendment.
 
Both Casper and Ferriero were appointed by President Barack Obama.
 
The plaintiffs sought immediate review in the Supreme Court, arguing it was "indisputable and intolerable" that "women suffer harm because they are unequal based on sex" and that the ERA's advocates have crucial interests at stake. But the court left Casper's ruling intact on Oct. 13 in a one-line order, with no recorded dissents.
 
The order did not end the case, which is heading to a federal appeals court. The fate of the amendment could still be affected by a separate suit filed in January by the three late-ratifying states and possible future legal action by Congress. The House passed a resolution by Rep. Jackie Speier , D-San Mateo, in February to eliminate the deadline, and it could reach the Senate floor next year if Democrats gain a majority. On the other side, legislators in at least four states - Nebraska, Idaho, Kentucky and South Dakota - have voted to rescind their previous approval of the ERA.

October 27, 2020 in Constitutional, Courts | Permalink | Comments (0)

Equal Rights Amendment Lawsuit Dismissed on Standing Grounds Denied Direct Supreme Court Review

Equal Rights Amendment Denied Supreme Court Hearing for Now

Equal Rights Amendment supporters won’t get an immediate hearing at the U.S. Supreme Court as they fight to ensure the nearly 50-year-old proposition is added to the U.S. Constitution.

 

The high court on Tuesday denied an unusual direct Supreme Court petition, which would have leapfrogged a U.S. appeals court, after a federal trial court in Boston dismissed their lawsuit for lack of standing.

 

“The petition for a writ of certiorari before judgment is denied,” the justices said.

 

The case is one of the two pending in federal courts over the ERA’s drawn out, and therefore disputed, ratification. ERA supporters had argued immediate Supreme Court action was appropriate “because the ERA is the most important and fundamental of all women’s rights, but also because everyone in America has a right and need to know whether it is now the Twenty-Eighth Amendment to the Constitution.”

The case had been dismissed on standing grounds in August, and the plaintiffs sought a direct petition in the Supreme Court

 

Equal Rights Amendment Lawsuit Thrown Out by US Judge in Boston

A Boston judge dismissed one of two federal lawsuits over the Equal Rights Amendment, finding the women’s rights groups who sued to ensure its addition to the U.S. Constitution lacked legal standing to bring the case.

 

The case—like a similar lawsuit pending in Washington—sought official recognition of the ERA as the 28th amendment to the Constitution after Virginia became the 38th state to ratify it in January. If its ratification is deemed valid, the amendment that Congress advanced to the states in 1972 would create a constitutional guarantee of equal treatment under the law for women, potentially affecting a broad swath of the law governing employment, health care, and more.

 

ERA supporters and those who oppose its ratification disagree over the validity of the 1979 deadline Congress imposed for three-fourths of states to approve it. A U.S. Justice Department legal opinion published in January found the deadline to be valid, and the U.S. archivist has declined to certify the ERA as officially ratified.

 

In the Boston lawsuit, the advocacy groups Equal Means Equal and The Yellow Roses, along with an individual woman, Katherine Weitbrecht, asked the court to order Archivist David Ferriero to grant that certification.

 

The women’s groups and Weitbrecht failed to show they’d suffered injuries that could be remedied by the court, a prerequisite to their maintaining the suit, Judge Denise J. Casper wrote in a decision granting the Justice Department’s motion to dismiss the case.

 

The judge stopped short of ruling on the merits of the case—namely, whether the 1979 deadline is valid and whether five states that voted to rescind their ERA approval had legal authority for those rescissions.

 

“Plaintiffs argue that all persons that would be protected under the ERA are injured by the Archivist’s actions because they have a legal interest in the ‘continued vitality of the ERA,’” Casper wrote.

 

“Cognizable injuries must be both concrete and particularized,” the judge said. “These generalized injuries to all those protected by the ERA fail in both respects.”

 

An attorney for the Boston plaintiffs said she is prepared to appeal and simultaneously seek review by the U.S. Supreme Court, following the model of a previous ERA lawsuit.

 

“Legally the judge got it wrong, but politically the decision was anticipated and we have already prepared a cert petition to get the case before the Supreme Court as soon as possible,” said Boston attorney Wendy J. Murphy. “It’s not common to go straight to the Supreme Court from the District Court but it’s exactly what happened with the Idaho ERA case in 1980, so we will follow that model and file an appeal with the First Circuit and a cert petition with SCOTUS.”

See also SF Chronicle, Equal Rights Amendment Battle Highlights Obstacles to Challenging Federal Decisions in Court

 

October 27, 2020 in Constitutional, Courts | Permalink | Comments (0)

Friday, October 2, 2020

Making the Case for Accepting Judicial Defeat on Roe v. Wade

Joan Williams, The Case for Accepting Defeat on Roe

The argument that the left has already lost the abortion fight reflects the fact that there’s no abortion clinic in 90 percent of American counties. This is the result of the highly successful death-by-a-thousand-cuts anti-abortion strategy, which has piled on restriction after restriction to make abortion inaccessible to as many American women as possible.

Chief Justice John Roberts’s concurring opinion this summer in June Medical Services v. Russo — the one that mattered — was hailed as a surprise victory for abortion rights, but not by me. Justice Roberts refused to uphold Louisiana restrictions virtually identical to those the court struck down as unconstitutional just four years earlier, but clearly stated that his reluctance was because of his respect for precedent. Anyone with their eyes open could see the justice signaling to abortion opponents to continue the process of eroding Roe v. Wade’s nigh-absolute protection of access to abortion during the first trimester by inventing new types of restrictions, which they have been remarkably creative in doing.

If Judge Amy Coney Barrett becomes the next Supreme Court justice, Justice Roberts’s vote will be irrelevant, anyway. And if things already looked pretty grim, now they look much worse: Up to 21 states have passed laws banning or limiting abortions in ways that are currently unconstitutional. Many will go into effect immediately if Roe is fully overturned.

So what should we do now? Often forgotten is that R.B.G. herself had decided that Roe was a mistake. In 1992, she gave a lecture musing that the country might be better off if the Supreme Court had written a narrower decision and opened up a “dialogue” with state legislatures, which were trending “toward liberalization of abortion statutes” (to quote the Roe court). Roe “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue,” Justice Ginsburg argued. In the process, “a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

What Ginsburg called Roe’s “divisiveness” was instrumental in the rise of the American right, which was flailing until Phyllis Schlafly discovered the galvanizing force of opposition to abortion and the Equal Rights Amendment. Schlafly wrote the culture wars playbook that created the odd coupling of the country-club business elite with evangelicals and blue-collar whites. In exchange for business-friendly policies like tax cuts and deregulation, Republicans now allow these groups to control their agenda on religion and abortion. It’s hard to remember now but this was not inevitable: abortion was not always seen as the partisan issue it is todaynor did evangelicals uniformly oppose abortion.

Whether or not R.B.G.’s assessment of Roe was correct, the best tribute we can pay to her is to do what she suggests: open up the kind of dialogue that occurred in Ireland, where young people knocked on grannies’ doors and persuaded them to vote to legalize abortion, which — much to the distress of the Catholic Church — they did. (At the same time, activists galvanized to ensure that, in the absence of a referendum, women throughout the country would have access to and knowledge about medication abortions.)

I don’t want Roe to be overturned, but if that happens, it could bring political opportunity. The emotional heat that surrounds abortion as an issue manages to obscure that the attitudes driving opposition to abortion actually reveal some surprising common ground with progressives on economic issues.

October 2, 2020 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

Friday, September 25, 2020

CFP Con Law Center Symposium: Examining Black Citizenship from Reconstruction to Black Lives Matter

Call for Papers: Examining Black Citizenship from Reconstruction to Black Lives Matter

The Center for Constitutional Law at Akron
Virtual Symposium (online)
Friday, Feb. 5, 2021, 9am to 5pm

This year celebrates 150 years of the Fifteenth Amendment, 100 years of the Nineteenth Amendment, 55 years of the Voting Rights Act, and just over 55 years of Title VII. Each of these laws brought some systemic change to the participation of Black citizens in the polity. This symposium will explore the ways in which the reconstructed Constitution intended or neglected to establish political and civil citizenship rights regardless of race. Drawing on current social movements like Black Lives Matter, MeToo, SayHerName, and Defund the Police, this academic discussion reflects on the role of law in creating, sustaining, and resolving the identified problems.

Topics for presentation in the broad umbrella of this symposium might include: how social movements transform or engage the law, how academics translate social movements, a reconstructed history of the 15th or 19th Amendment, the Jim Crow and Jane Crow eras and their continuing effects, current battles for voting rights regarding felons, polling restrictions, and other limitations with disparate impact, intersectional dimensions of justice including Black feminism, the causes and consequences of Black Lives Matter, vestiges of slavery, reparations for slavery, policing reform, mass incarceration, judicial remedies for citizenship violations, and/or the gendered differences of black citizenship rights.

The Virtual Symposium is sponsored by the Center for Constitutional Law at Akron. The Center is one of four national centers established by Congress on the bicentennial for the purpose of promoting scholarship and education on matters of constitutional law. The Center includes five affiliated faculty fellows, student fellows, an online journal, ConLawNOW, a JD certificate program in constitutional law, a social justice project, and a Masters of Law in social justice.

Papers presented will be published in a symposium edition of ConLawNOW. ConLawNOW is an online, open-access journal that is also indexed in Westlaw, Lexis, and Hein. It is designed to publish shorter works of 10-20 pages within a short editorial timeframe to get scholarship into the public discourse more quickly. Recent authors published in ConLawNOW include Larry Solum, Paula Monopoli, Ernie Young, Harold Koh, Helen Norton, Judge Jeffrey Sutton, Ruthann Robson, and Julie Suk.

Those interested in presenting a paper should submit a proposal detailing the intended presentation to Professor Tracy Thomas, Director of the Center for Constitutional Law, at thomast@uakron.edu by December 1.  Draft papers should then be submitted by January 20, 2021 for circulation among the other participants for the symposium. Final papers will be due by March 1, 2021, and expected to publish by early April.

September 25, 2020 in Call for Papers, Conferences, Constitutional, Legal History, Race | Permalink | Comments (0)

Tuesday, September 22, 2020

Symposium 9/25: Two Centuries of the Equal Rights Amendment

Symposium, Fri. Sept. 25, Two Centuries of the Equal Rights Amendment, University of Florida School of Law

Please join scholars, legislators, and practitioners on Friday, September 25 for the Symposium, Two Centuries of the Equal Rights Amendment. This Symposium addresses many questions left unanswered after the recent ratification of the Equal Rights Amendment by Virginia. It has taken 97 years for the ERA to meet the technical requirements of Article V. But will it take its rightful place as the Twenty-Eighth Amendment? And will it be Congress, or the courts, that make it happen?

Please visit the Symposium website for a detailed schedule. This Symposium may be attended on a per panel basis and is free and open to the public. Please register to receive the Zoom link and Outlook invitation. 6.5 Florida CLEs pending.

September 22, 2020 in Conferences, Constitutional, Law schools, Legal History | Permalink | Comments (0)

Friday, September 11, 2020

Zoom Webinar The Centenary of the 19th Amendment: New Reflections on the History and Future of Gender, Representation, and Citizenship Rights

Zoom webinar at Boston University School of Law, Friday, September 25, “The Centenary of the 19th Amendment: New Reflections on the History and Future of Gender, Representation, and Citizenship Rights.” The speakers include law professors, political scientists, and political practitioners, and Rachel B. Tiven, a/k/a The Daily Suffragist. Here is the link for the program and registration:

https://www.bu.edu/law/2020/01/29/19th-amendment-program/

Several papers from the conference will appear in a mini-symposium issue of the Boston University Law Review, Volume 100, Issue 5, due out in October 2020:

https://www.bu.edu/bulawreview/forthcoming/

September 11, 2020 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Wednesday, September 9, 2020

Women's Right to Vote in New Jersey (1776-1807) and its Analogy to the Marginalization of Voters Today

Note, Campbell Curry-Ledbetter, Women's Suffrage in New Jersey 1776-1807: A Political Weapon, 21 Geo. J. Gender & Law 705 (2020)

Women had the right to vote in New Jersey from 1776 – 1807. Traditionally, historians have treated women’s suffrage in New Jersey as an insignificant historical anomaly. More recent works, however, show that women’s voting played an important role in the increasingly contested elections of the era and was a critical part of New Jersey’s efforts to define the “body politic.” This paper examines the ways in which the Federalist and Republican parties weaponized women’s suffrage between 1797 and 1807. It argues that both parties tied women to allegations of voter fraud and depicted them as political pawns to delegitimize the opposing party’s electoral victories. Over time, these attacks diminished support for female suffrage and contributed to women’s disenfranchisement in 1807. It argues further that the treatment of women voters in the late 18th and early 19th century and their disenfranchisement is analogous to the treatment of marginalized voters today and modern efforts to implement strict voter restrictions.

September 9, 2020 in Constitutional, Legal History | Permalink | Comments (0)

Wednesday, August 26, 2020

Recommended Reading on the 19th Amendment

My own work

Tracy Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stanford J. Civ. Rgts. & Civ. Liberties 349 (2020)

Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen:  Challenging the Myth that Women Judges Judge Differently, William & Mary J. Race, Gender & Social Justice (forthcoming) (on Ohio women’s suffrage story)

Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)

Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016) (on vote as part of greater demand for gender equality in the family)

19th Amendment Symposium, University of Akron School of Law, in ConLawNOW and Akron Law Review

 

Reading List:

Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford 2020)

Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family 115 Harvard L. Rev. 945 (2002)

Ellen Carol DuBois, Suffrage: Women's Long Struggle for the Vote (Norton 2020)

Ellen Carol DuBois, Feminism & Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869 (Cornell 1999)

Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920

Martha Jones, Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All

Martha Jones, All Bound Up Together: The Woman Question in African American Public Culture, 1830-1900

Kimberly Hamlin, Free Thinker Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardner (Norton 2020)

Doris Stevens, Jailed for Freedom: A First Person Account of the Militant Fight for Women’s Rights

Elaine Weiss, The Woman's Hour: The Great Fight to Win the Vote (2019)

Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)

Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution, 27 Duke J. Gender Law & Policy 235 (2020)

Ann Gordon, ed., African American Women and the Vote, 1837-1965 (U Mass Press 1997)

Lauren Free, Suffrage Reconstructed: Gender, Race and Voting Rights in the Civil War Era (2015)

Holly McCammon & Lee Ann Banaszek, eds., 100 Years of the 19th Amendment: An Appraisal of Women's Political Activism (Oxford Press 2018)

Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)

Adam Winkler, A Revolution Too Soon: Women Suffragists and the Living Constitution, 76 NYU L Rev.  1456 (2001

August 26, 2020 in Books, Constitutional, Legal History, Race | Permalink | Comments (0)

Say Her Name: Black Women Activists in the Women's Suffrage Movement

Angela Dodson, Why Women's Suffrage Matters for Black People

While our collective memory of the suffrage movement is often a vision of a small band of white women — fighting the establishment alone, marching and picketing in their flowy white dresses — the story of the women’s movement was more complicated and nuanced than that. It involved many women, but also men, of different races who had to find their voice, identify allies and build coalitions.

 

As the centennial of the 19th Amendment’s certification on Aug. 26, 1920, approaches, many African Americans have questioned whether the suffrage movement is relevant to them, because most Black people in the South were disenfranchised anyway. For many African Americans, the movement’s reputation for discriminating against or dismissing Black suffragists and the long history of discord between white and Black feminists do not inspire enthusiasm for the anniversary celebration.

 

As we approach the centennial and the first presidential election with a Black/Asian woman in the race, the first woman of color on a major political party’s ticket, we should examine how we got the vote and at what cost.

 

To dismiss the suffrage movement as irrelevant dishonors the many Black women and men who participated — lobbying, debating, lecturing, petitioning, editorializing, parading and picketing alongside white suffragists.

 

As women are gaining greater leverage in the political system, now is the time to study and credit the contributions of all suffragists and expand our knowledge of the entire movement.

African American Women Leaders in the Suffrage Movement

Including Soujourner Truth, Angelina Weld Grimke, Sarah Redmond, Mary Ann Shadd Cary, Frances Harper, Josephine Ruffin, Mary Church Terrell, Ida B. Wells-Barnett, and many more.

 

Taken from Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920

Martha Jones, Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All

Martha Jones, All Bound Up Together: The Woman Question in African American Public Culture, 1830-1900

 

 

August 26, 2020 in Books, Constitutional, Legal History, Race | Permalink | Comments (0)

Monday, July 27, 2020

Thin and Thick Interpretations of the Nineteenth Amendment -- A More Robust Understanding of Women's Constitutional Rights

Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees.

 

This Article argues the Nineteenth Amendment does more. A “thick” understanding of the Nineteenth Amendment’s substantive right is consistent with the Amendment’s text and history, as well as with a synthetic interpretation of the Constitution and its expanding guarantees of voting rights. The thick understanding of the Nineteenth Amendment would allow voting-rights plaintiffs to attack restrictive voting laws burdening women—especially those laws burdening young women of color, who are also guaranteed nondiscrimination in voting on the basis of age and race. A thick understanding of Congress’s power to enforce the Nineteenth Amendment would give Congress the ability to pass laws protecting women from voter discrimination and promoting their political equality. The thick understanding offers a way to redeem the Amendment from some of its racist origins and entanglement with the sexism that limited the Amendment’s reach. It also reinforces the democratic legitimacy of the Constitution. Nonetheless, the current Court is unlikely to embrace a thick understanding of the Nineteenth Amendment.

Paula Monpoli similarly argues for a thick or more robust interpretation of the Nineteenth Amendment, tracing the historical development of the thin conception of the amendment post-ratification in her new book, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford Aug. 2020).  See Paula Monopoli, The Constitutional Development of the Nineteenth Amendment in the Decade Following Ratification, 11 ConLawNOW 61 (2019)

Reva Siegel argues for a more robust interpretation of the Nineteenth Amendment for gender equality more generally by a better understanding of the pre-ratification history, and a symbiotic reading of the Nineteenth with the Fourteenth Amendment Equal Protection Clause.  Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J. Forum 450 (2020)

 

July 27, 2020 in Constitutional, Gender, Legal History, Theory | Permalink | Comments (0)

Thursday, July 23, 2020

What Took so Long for the ERA To Gain Traction?

I'm quoted in this article on the ERA.

Hannah Hayes, 100 Years On, the ERA Rises from the Ashes, ABA Perspectives Magazine (March 2020)

n March 2017, Nevada became the 36th state to ratify the Equal Rights Amendment (ERA). The move came just two months after the Women’s March on Washington drew hundreds of thousands to Washington, D.C., to protest President Donald Trump’s inauguration, as millions of women joined in simultaneous marches worldwide.

 

The vote also came 45 years after Congress passed the constitutional amendment, a move requiring ratification by three-fourths (38) of states before it became law. That year, 22 states immediately jumped on board; eight states ratified the ERA in 1973, followed by three states in 1974, with only two more states in 1975 and 1977.

 

After the decades-long gap, Nevada was followed by Illinois in 2018, and in January of this year, Virginia became the 38th state, technically making the amendment a reality. However, approval has been stalled because the amendment was introduced with a proposed two-year deadline for state ratification, and five states rescinded approval in the 45 years following their approval. Many credit the #MeToo movement and the election of President Trump with re-invigorating the women’s movement. “[Former President Barack] Obama claimed we were post-racial, but 2016 woke people up,” says Senator Pat Spearman, the democratic Nevada senator who introduced the resolution and who has since championed ratification across the country.

 

Others say, however, a persistent ground game that involved flipping seats and working state by state kept the amendment alive when many thought it had died a quiet death in the late 1970s. “I think the Women’s March helped inject vigor and also turned average people into activists,” says Kate Kelly, a human rights lawyer in the New York office of Equality Now, an international women’s rights organization, and a member of the national ERA Coalition. “Most people said it came out of nowhere, but people had been working on the ground in many states for many years. It just wasn’t getting any attention.”


What Took So Long?

 

While the Nineteenth Amendment, which was ratified in 1920, recognized women’s right to vote, it did not make women equal under the law. Further, it was only one strand of a series of demands made by Elizabeth Cady Stanton and abolitionist Lucretia Mott at the historic Seneca Falls Constitutional Convention in 1848 that included a broad list of social and civil rights, such as no-fault divorce and equal marital property rights. The Equal Rights Amendment was authored by Quaker abolitionist Alice Paul in 1923 and revised in 1943.

 

“Paul had a group of women lawyers from every state who analyzed the statutes in each state, and they came up with 350 statutes in 30 different areas of law where there was inequality,” says Tracy Thomas, director of the Center for Constitutional Law at the University of Akron (Ohio) School of Law.

 

According to Thomas, the ERA was met with opposition from the beginning. ERA advocates clashed with the labor movement, which was fighting for minimum wage and workplace safety. “The way they had been successful was by saying that women needed protection because legislators could understand that, so there was the fear that if you said the women were equal to men, nobody would get workplace protection,” Thomas explains.

 


Eventually, those issues faded following the passage of the Fair Labor Standards Act in 1938 and the rise
of the civil rights movement.

July 23, 2020 in Constitutional, Legal History, Legislation | Permalink | Comments (0)

Monday, July 20, 2020

Giving Gender Discrimination a Meaningful Remedy: Rewriting Justice Ginsburg's Opinion in Morales-Santana

I have just published: Tracy Thomas, Rewriting Sessions v. Morales-Santana, in Feminist Judgments: Family Law Opinions Rewritten (Rachel Rebouche ed., July 2020)

In Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), the Supreme Court in an opinion by Justice Ginsburg struck down a citizenship law that discriminated against children born abroad to US citizens based on whether the citizen was their father or their mother.  The opinion was widely held to be a model of equal protection analysis, documenting the legal history of the Court's gender equal protection law and recognizing the masculinity side of gender discrimination against men.  

However, the opinion was problematic for its refusal to order a meaningful remedy for the petitioner.  The Court did not grant the discrimination victim relief, but instead ordered the government to adopt formally equal rules going forward, and that those rules should be the more stringent rule for fathers. The Court was focused on restraining the government rather than redressing the individual's harm.

I have written about the remedial problem of so-called leveling down unequal treatment to deny the benefit.  Tracy Thomas, Leveling Down Gender Equality,  Harvard J. Law & Gender (2019).

In this book chapter, I apply these criticisms to rewrite the Court's opinion to properly award a meaningful remedy as required by due process.  This book is part of the US Feminist Judgments Project rewriting key court decisions as if they had been informed by feminist theory. 

 

 

 

July 20, 2020 in Books, Constitutional, Family, Masculinities, SCOTUS | Permalink | Comments (0)

"Where is God When we Need Her?" Women's Right to Freedom of Religion or Belief as Key to Promoting Gender Equality

Cochav Elkayam-Levy, "Where Is God When We Need Her? Women’s Right to Freedom of Religion or Belief as Key to Promoting Gender Equality"  95, Tulane L. Rev. (forthcoming)


Belief is a fundamental right of every woman. It articulates women's freedom to follow their aims and beliefs and protects their personal autonomy to pursue their chosen faith (be it theistic, non-theistic or atheistic). It also guarantees that women would be able to freely express their diverse opinions, moral convictions and experiences without social or other constraints. Yet this article reveals that women’s belief liberties are a blind spot in human rights law. The right to freedom of religion or belief has thus far been widely viewed by the international community as an obstacle to women's advancement; Among many aspects of this problem, this article considers the implications of the omission of the right to freedom of religion or belief from the Women’s Convention. It shows that states receive little guidance on how to secure this right in ways that also respect the right to gender equality. It also identifies a conflict syndrome by which women are predominantly viewed through the lens of harmful practices. Lastly, it calls attention to the fact that, presently, no state is being systematically supervised for implementing this fundamental right of women. Examining possibilities for change, the article demonstrates that the right of women to gender equality and to freedom of religion or belief are inseparably linked and that international mechanisms protecting women’s belief liberties could tremendously contribute to advancing women’s equal status.

July 20, 2020 in Constitutional, International, Religion | Permalink | Comments (0)

Tuesday, July 14, 2020

Virtual Conference: The 15th & 19th Amendments on the Anniversary of their Ratifications

Massachusetts Historical Society, “Shall Not Be Denied”: The 15th and 19th Amendments at the Sesquicentennial and Centennial of Their Ratifications

“Shall Not Be Denied”: The 15th and 19th Amendments at the Sesquicentennial and Centennial of their Ratifications, October 12-16, 2020

Registration opens in August!

As a result of ongoing public health concerns, the Massachusetts Historical Society has altered its original plan for an in-person conference in October 2020. Rather than meeting for two days of sessions, we will host the conference panels online between Monday, 12 October and Friday, 16 October 2020. The originally scheduled keynote panel will be postponed until it is safe to hold the event in person at the MHS.

Download Conference Schedule 

The year 2020 marks the anniversaries of two critical amendments to the United States Constitution. Spaced fifty years apart, the Fifteenth and Nineteenth Amendments, ratified in 1870 and 1920, respectively, prohibited the use of race or sex to deny American citizens the franchise. However, the amendments did not prevent states from adopting other methods of discrimination. Viewed as the product of two different movements—abolitionism and the Civil War on the one hand and the Progressive campaigns and the First World War on the other—these two periods and amendments are not often considered together. This conference revisits the long journey to secure voting rights for African Americans and women in United States history. It considers the legal precedents and hurdles that each amendment faced, the meaning and uneven outcomes of each, the social context that allowed for ultimate ratification, the role of key individuals and groups in these respective contexts, and how each amendment has been remembered over time.

At a later date, a keynote panel will feature feature Profs. Alison M. Parker (University of Delaware) and Lisa Tetrault (Carnegie Mellon University) and will be moderated by Prof. Alex Keyssar (Harvard).

July 14, 2020 in Conferences, Constitutional, Legal History, Race | Permalink | Comments (0)

Guest Blogger Julie Suk on the ERA as a Political Question

Guest Blogger, Julie Suk is Professor of Sociology & Political Science, The Graduate Center - CUNY, and Visiting Professor at Yale Law School.  She is the author of the new book We the Women: The Unstoppable Mothers of the Equal Rights Amendment (forthcoming August 2020). You can follow her @JulieCSuk

 

Julie Suk, The Feminist ERA Worth Fighting For:: A Political Question

Virginia became the 38th state to ratify the Equal Rights Amendment earlier this year, one hundred years after the Nineteenth Amendment and nearly fifty years after the ERA was adopted by Congress. My forthcoming book, We the Women, chronicles women’s long battle for the ERA to argue that the 1972 Equal Rights Amendment should be added to the Constitution, despite the passage of roughly forty years after the ratification deadline.

But the procedural path by which the ERA gets saved will shape the ERA’s long-term legitimacy and feminist potential. That is why I filed an amicus brief in the litigation brought by Virginia in pursuit of a judicial declaration of the ERA’s validity, arguing that Congress, not the courts, should decide in the first instance what to do about the ERA ratification deadline. Joined by distinguished constitutional law professors Erwin Chemerinsky, Reva Siegel, and Noah Feldman, our brief applies the logic of Coleman v. Miller, which affirmed Congress’s power over time frames for ratification, and treated the reasonableness of ratification time frames as a nonjusticiable political question. In the lawsuit, the three states that ratified the ERA after the deadline are suing the National Archivist, who refuses to publish the ERA in the Constitution, in deference to the Trump Administration’s opinion that the deadline for states to ratify the ERA expired in 1979.  Virginia claims that Article V does not authorize Congress to impose ratification deadlines on sovereign states. The court has allowed an intervention by states that have not ratified the ERA, or voted to rescind their prior ratifications. In their motion for summary judgment, filed earlier this week, the intervenors urge the court to conclude that “the ERA that Congress proposed in 1972 failed of adoption in 1979 and can no longer be ratified,”and that they possess sovereign power as states to rescind their ratifications. If the court reaches the merits of the intervenor states’ arguments, more members of the sitting federal judiciary, on the DC Circuit and the Roberts Court, will eventually decide the fate of the ERA.

Our amicus brief supports no party, even though Virginia’s goal of a court declaring the ERA to be part of the Constitution now, after a century of struggle, is admittedly enticing for the ERA proponent. But here’s what ERA proponents can gain if Congress votes to removes the deadline first: feminist legislative history that guides its future meaning. This path could take longer, because congressional action to save the ERA might not be accomplished until after November’s election.

Pro-ERA groups like the ERA Coalition have already made incrementally successful efforts to persuade Congress to remove the deadline. In Congress, the House passed a resolution lifting the deadline on ratification in February 2020, and a similar resolution has been introduced in the Senate with 48 sponsors so far.  (Thirty-five Senate seats are on the ballot this November). The ERA’s long-term legitimacy depends on Congress taking action to remove the deadline before Trump-appointed federal judges take the opportunity to declare the ERA forever expired. 

More importantly, congressional action is more likely to produce the robust ERA that its proponents are fighting for.  As 8 amicus briefs filed by many women’s groups make clear, ERA proponents want the ERA to go farther than judicially-created sex equality under the Equal Protection Clause, to reach pregnancy discrimination, the problems brought to light by the #MeToo movement, and the gender inequities in caregiving and essential work laid bare by the Covid-19 crisis.  They want the U.S. Constitution to learn from gender equality provisions promoting real equality in other constitutional democracies around the world that were adopted after the ERA was proposed. That robust ERA, moving beyond what was intended or imagined in the 1970s, is already being made by lawmakers through legislative hearings and debates about removing the deadline. This overtly political debate will not be part of a judicial decision in a litigation about Article V.

The 116th Congress had record numbers of women and women of color elected. When the House voted in February 2020 to recognize the ERA as valid “whenever ratified” by three-fourths of the states – which occurred when Virginia became the 38th state to ratify the ERA in January, that vote came after two hearings and a floor debate. In April 2019, due largely to the persistent advocacy of the ERA Coalition, the House Judiciary Committee held a hearing on removing the deadline on the ERA.  In that hearing, constitutional law giant Kathleen Sullivan pointed to the gender equality provisions in constitutions around the world, and called the absence of such a provision in the United States a “national embarrassment.”  In November 2019, the House Judiciary Committee voted to report the ERA deadline removal favorably for a full vote by the House.  Unlike the all-male House Judiciary Committee that reported the ERA out in 1971, nearly one-third of the current committee consists of women. Several women of color on the committee, like Congresswoman Sheila Jackson Lee of Texas, explained why the ERA was still needed in the markup hearing.  Congresswoman Pramila Jayapal said that the ERA could reach discrimination based on pregnancy, childbirth, and caregiving responsibilities.  “A vote for the ERA is a vote for families,” she said, countering the 1970s STOP-ERA campaigns depicting the ERA as anti-family.

The House Judiciary Committee’s written report, issued in January 2020, suggested that the ERA

could provide a basis for Congress to engage in affirmative efforts to support gender equality both at home and in the workplace. Additionally, under some theories, the ERA could provide a basis for plaintiffs to challenge laws or policies that have a disparate impact on women, or support efforts to create gender balance in certain contexts.  Additionally, the ERA's prohibition against discrimination “on account of sex” could be interpreted to prohibit discrimination on the basis of sexual orientation or gender identity.

In the floor debate leading to the House’s vote to lift the deadline, several Congresswomen from various states, ranging in age, race, and ethnic background, spoke to give the ERA meaning, including some who opposed it.  Speaker Nancy Pelosi said the ERA would help protect pregnant women and new mothers who were in the workforce.  Congresswoman Rashida Tlaib, the first Muslim woman ever elected to Congress, said that the ERA was “about women of color, women with disabilities, transgender women, immigrant women.” In both the Judiciary Committee report and the floor debate, ERA opponents expressed the fear that the ERA would expand abortion access, to which Judiciary Committee Chairman Nadler responded, “If people on the other side want to admit that equality of rights under the law means there must be a constitutional right to abortion, well, that is wonderful.“ Congress – the lawmaking body of democratically elected representatives from throughout the nation – is the only institution that can make the ERA address twenty-first century concerns, as new constitutional meanings emerge from dynamic dialogue with the political opposition.

In the Senate, Republican Lisa Murkowski has cosponsored S.J. 6, lifting the ERA deadline, along with Democrat Ben Cardin.  The Senate resolution now has 48 cosponsors.  On June 4, 2020, Senator Murkowski recognized the 101st anniversary of the Senate’s adoption of the women’s suffrage amendment. She pointed to Virginia’s ratification of the ERA and urged her Senate colleagues to remove the deadline. “I have asserted time and again . . . that you cannot put a time limit on women’s equality. . . Women’s equality is fundamental to the American way of life, and it is far past time to be expressly recognized in the Constitution.” In that same speech, she acknowledged the persistence of racial injustice and its connection to the struggle for women’s equality: “Today, June 4, is not only a recognition of women’s suffrage, but it is the funeral of George Floyd.”

Congressional efforts to remove the ratification deadline create opportunities for lawmakers to articulate why the ERA remains necessary and what its twenty-first century goals are. Congressional completion of ERA ratification will make the contributions of women lawmakers part of the twenty-first century ERA’s legislative history.  A judicial decision about the ratification deadline simply can’t do the feminist heavy lifting that the women in Congress are doing.  In 1978, women in Congress led the first extension of the ERA deadline, and clarified the ERA’s goals in those debates.  In the past year, as it debated the deadline removal, Congress has been at the center of updating the ERA to respond to the twenty-first century needs of all the nation’s people.  These meanings will become part of the ERA if Congress acts to remove the deadline.

July 14, 2020 in Books, Constitutional, Guest Bloggers | Permalink | Comments (0)

Tuesday, July 7, 2020

June Medical Returns SCOTUS Precedent to Less Demanding Standard of Casey

Caroline Mala Corbin, June Medical is the New Casey

The atmosphere awaiting the Supreme Court’s decision in Planned Parenthood v. Casey felt similar to the one awaiting today’s decision in June Medical Services v. Russo.  At stake was whether the U.S. Constitution would continue to protect a woman’s right to abortion. Casey reaffirmed that right but lowered the level of protection. June Medical does the same. In fact, Casey is likely to be the controlling Supreme Court precedent on abortion once again.

 

To understand what this means, let me provide a brief background on abortion and the Supreme Court.  As most people realize, the Supreme Court declared that the right to abortion was a fundamental right in Roe v. WadeRoe also required strict scrutiny of any abortion regulation, where regulations of first trimester abortion (when the vast majority of abortions occur) were presumptively unconstitutional.

 

What many do not realize is that the Supreme Court subsequently dialed back the level of protection in Planned Parenthood v. Casey (1992). In a 5-4 decision, the Supreme Court reaffirmed that abortion was still a constitutional right. However, the Court replaced the strict scrutiny test with the undue burden test, making abortion much easier to regulate.  According to the Casey Court, as long as a law did not impose an “undue burden” on women seeking an abortion, it was fine.  An undue burden occurs when the state places a substantial obstacle in the path of a woman hoping to end her pregnancy. Unfortunately, the Supreme Court in Casey and subsequent cases made clear their view that very few regulations impose an undue burden. Waiting periods? No undue burden.  Outlawing a safer procedure? No undue burden.  Under the Casey regime, states were able to severely restrict access to abortion by passing laws ostensibly to protect women’s health, but in reality undermined it by making abortion more expensive, time-consuming, and difficult to obtain due to clinic closures.

 

Quite unexpectedly, in Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court strengthened the undue burden test, providing heightened protection for abortion rights. The analysis of whether a law imposed an undue burden now had two questions instead of one. As before, courts must consider whether a law created a substantial obstacle in the path of a women seeking an abortion.  But in addition, the Court would consider the actual benefit of the law. If the stated goal was to improve women’s health, states must provide evidence to that effect. This is critical because, as mentioned above, states regularly passed laws which they claimed were to make abortion safer for women but were really designed to just make it harder.***

 

However, also similar to CaseyJune Medical signals less protection for abortion rights going forward. Although Justice Breyer’s plurality opinion relied on the highly protective undue burden test as formulated by the Whole Woman’s Health majority, which requires examination of both the actual benefit of the law, as well as the burden imposed by the law, Chief Justice Roberts did not.  Chief Justice Roberts, who provides the crucial fifth vote to reaffirm that abortion was a constitutionally protected right, repudiates the Whole Woman’s Health test. Instead, he wrote that “the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’” In other words, the test for whether an abortion regulation violates the constitution is the Casey test with one question, not two. Thus, like CaseyJune Medical reaffirms abortion is a constitutional right while cutting back protection for abortion.

July 7, 2020 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Women are Being Written Out of Abortion Jurisprudence

Dahlia Lithwick, Women are Being Written Out of Abortion Jurisprudence

It was hard not to miss that there were six separate opinions filed in June Medical Services v. Russothe major abortion litigation of this year’s Supreme Court term, and that every one of those six separate opinions was penned by a man. When Roe v. Wade was written in 1973, the majority opinion also came from the pen of a man, Justice Harry Blackmun, who was at pains to protect and shield the intimate and vital relationship between a doctor (“he”) and the pregnant women. Of course, there were no women on the Supreme Court in 1973, so one could hardly have expected a woman to write the decision, or even for a man to write it with the experience of women at front of mind. Oddly, almost half a century later, none of the three women on the high court wrote a word in June Medical.

 

In the interest of being perfectly clear, I herein lay my cards on the table: I’m not a huge fan of this kind of essentializing and almost four years ago to the day I did a little touchdown dance when the opinion in Whole Woman’s Health v. Hellerstedt, the Texas abortion ruling with facts virtually identical to those from this year’s, was assigned to Justice Stephen Breyer. At the time I found myself moved by the fact that, as I wrote then, there was “something about Breyer, the court’s sometimes underappreciated fourth feminist, reading patiently from his opinion about the eye-glazing standards that Texas would have required in constructing an ‘ambulatory surgical center,’ that makes the announcement of Whole Woman’s Health just fractionally more perfect. This isn’t just a women’s case about women’s rights and women’s health. ***

 

There are no women in the plurality opinion in June Medical. There are a lot of physicians (mostly male) seeking admitting privileges at hospitals, and there are a lot of judges (mostly male) substituting their own judgment for the women who desire to terminate a pregnancy. And now there are a whole lot of Supreme Court justices, every last one of them male, substituting their judgment for doctors who tried to get admitting privileges and for the judgment of the other men who have myriad and complicated feelings about women who seek to terminate a pregnancy. While the dissenters are voluble about bits of fetal tissue (Justice Neil Gorsuch) and concern for women as victims of greedy abortionists (Justice Samuel Alito), their complete and utter silence about actual women and their actual choices and their lived lives and their hardship is impossible to escape. All these years later, they are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer. It is into this woman-shaped silence that Ginsburg has poured out her own life experience, in cases about wage discrimination, contraception, and harassment, in so many other cases over her career. But it is into this woman-shaped silence that we will now fight the next abortion battles, over a constitutional right—as laid out in Roe, reaffirmed in Casey, strengthened in Whole Woman’s Health—which now comes down to a sort of elaborate agency review of whether clinics and physicians acted “in good faith” to comply with laws whose efficacy doesn’t much matter. And one cannot escape the feeling that we have not come a very long way from Blackmun’s deep regard for the wisdom of the male physicians in Roeand  Justice Anthony Kennedy’s deep regard for the wisdom of male Supreme Court justices in 2007’s Gonzales v. Carhart, as we limp toward a celebration of Roberts’ deep regard for precedent and processThe regard for a woman’s right to choose itself? That doesn’t even register as material.

July 7, 2020 in Abortion, Constitutional, Judges, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, July 6, 2020

Law Professors File Amicus Arguing Question of Equal Rights Amendment Ratification is a Political Question

Julie Suk, Who Decides the Future of the Equal Rights Amendment?, Take Care blog.

In January 2020, the Virginia legislature voted to ratify the Equal Rights Amendment to the U.S. Constitution, almost forty years after the ratification deadline.

 

Has the Constitution been amended? In a lawsuit filed in DC federal court, Virginia says that the ERA is now part of the Constitution. But the defendant National Archivist won’t publish the ERA in the Constitution, in deference to the Trump Administration’s opinion that the deadline for states to ratify the ERA expired in 1979.

 

Who is right, Virginia or the Archivist?  More importantly, who decides?

 

Last week, I filed an amicus brief in the case, joined by constitutional law colleagues Erwin Chemerinsky, Noah Feldman and Reva Siegel. Supporting none of the litigants, we argue that whether the ERA is part of the Constitution under these unprecedented circumstances is a political question for Congress in the first instance, not the courts or the Executive Branch.

 

Virginia, Nevada, and Illinois – the states that ratified after Congress’s deadline -- are asking a court to decide that the ERA was validly ratified and order the Archivist to publish it. Five states that did not ratify the ERA, or that ratified and rescinded their ratifications, have intervened. Their Answer tells the court that “[n]o state could have ‘ratified’ the Equal Rights Amendment in recent years because the deadlines for ratifying that amendment expired years ago.” The Archivist seems to think it’s up to the Executive Branch. If the court reaches the merits of the ERA’s validity, more members of the sitting federal judiciary, on the DC Circuit and the Roberts Court, will eventually decide the fate of the ERA.  But Congress should be the first mover on whether an amendment is ratified, particularly when states disagree.

 

The question of who decides matters, for the long-term legitimacy of the amendment in the eyes of the American people.  In Congress, the House passed a resolution lifting the deadline on ratification in February, and a similar resolution has been introduced in the Senate with 48 sponsors so far.  Thirty-five Senate seats are on the ballot this November. Consistent with Coleman v. Miller, which affirmed Congress’s power to determine reasonable time frames for the ratification of constitutional amendments, a court should not prematurely pronounce on whether the ERA has been or can yet be ratified.

 

Although the prospect of getting a federal judge to add the ERA to the Constitution now may have immediate appeal for ERA proponents, much can be gained by persuading Congress to lift the deadline, validate late ratifications, and reject rescissions.  An amendment’s procedural path makes a difference to its meaning and transformative potential.  The legislative process by which Congress is weighing the ERA’s timeliness provides opportunities for the ERA’s meaning to be updated for the twenty-first century.  These opportunities help legitimize a constitutional amendment after a generation has gone by.  Moreover, congressional debate about the broad range of issues implicated by the ERA– rather than court adjudication of the states’ Article V theory – is more likely to produce an ERA with the bite that its proponents seek.

Amicus Brief of Constitutional Law Professors Erwin Chemerinsky, Noah Feldman, Reva Siegel, in Virginia v. Ferriero (D.D.C.) is here.

July 6, 2020 in Constitutional, Courts, Legislation | Permalink | Comments (0)

Thursday, July 2, 2020

Anti-LGBT Free Speech and Group Subordination

Luke A. Boso, Anti-LGBT Free Speech and Group Subordination

In 2020, the Supreme Court in Bostock v. Clayton County, Georgia held that Title VII, a federal workplace antidiscrimination law, prohibits discrimination against gay and transgender employees. The majority concluded by citing potential concerns from religious and conservative dissenters, and it suggested that Constitutional and statutory principles of religious freedom and free speech might override LGBT-inclusive antidiscrimination commands in appropriate cases.

This Article is about the tension between liberty and equality. It examines this tension in the context of disputes over Free Speech and LGBT rights. Today, dominant conceptions of both Equal Protection and Free Speech are informed by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A pluralistic and progressive society must more adequately balance libertarian interests in the exercise of individual rights — like Free Speech — with the need for government action to promote equitable outcomes. This Article joins voices prominent in the field of Critical Race Theory who argue for an antisubordinating approach to both equality and liberty. Simply put, if the triumph of a Free Speech claim would enforce a status hierarchy that positions historically oppressed groups as inferior, that Free Speech claim should fail.

The moment is ripe to reconceptualize liberty and equality. In response to a shifting social and legal climate that is increasingly less tolerant of bullying, embraces liberal sexual and gender norms, and seeks to institute formal equality for formerly disfavored groups, many in the conservative movement have turned to the First Amendment to protect the status quo. A libertarian view of the Constitution ensures that meaningful liberty and equality exist only for some. The LGBT community and the backlash to its increasingly protected legal status sit at the epicenter of current court battles over the contours of equality and the breadth of the First Amendment, but equity for all marginalized groups is at stake.

July 2, 2020 in Constitutional, LGBT, Theory | Permalink | Comments (0)