Gender and the Law Prof Blog

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

Wednesday, January 13, 2021

Working Mothers and the Postponement of Women's Rights from the Nineteenth Amendment to the Equal Rights Amendment

Julie Suk, Working Mothers and the Postponement of Women's Rights from the Nineteenth Amendment to the Equal Rights Amendment,   Forthcoming, University of Colorado Law Review, Vol. 92, No. 3, 2021

The Nineteenth Amendment’s ratification in 1920 spawned new initiatives to advance the status of women, including the proposal of another constitutional amendment that would guarantee women equality in all legal rights, beyond the right to vote. Both the Nineteenth Amendment and the Equal Rights Amendment (ERA) grew out of the long quest to enshrine women’s equal status under the law as citizens, which began in the nineteenth century. Nearly a century later, the ERA remains unfinished business with an uncertain future. Suffragists advanced different visions and strategies for women’s empowerment after they got the constitutional right to vote. They divided over the ERA. Their disagreements, this Essay argues, productively postponed the ERA, and reshaped its meaning over time to be more responsive to the challenges women faced in exercising economic and political power because they were mothers. An understanding of how and why the amendment stalled speaks directly to the current controversy in Congress and the courts about whether a congressional time limit should stop the ERA from achieving full constitutional status. Such an understanding recognizes that suffragists disagreed in the immediate aftermath of the Nineteenth Amendment’s ratification over the ERA, and that these divisions undermined the ERA’s prospects for at least a few decades. Ultimately, however, the ERA that earned congressional adoption and 38 ratifications over almost a century was stronger because of this postponement.

January 13, 2021 in Constitutional, Family, Legal History | Permalink | Comments (0)

In Another Shadow Docket Order, SCOTUS Stays Abortion In-Person Medication Requirement During COVID Found Unconstitutional by District Court

In another shadow docket ruling, the Supreme Court stayed a district court's preliminary injunction enjoining the unconstitutional application of a Covid abortion requirement that women seeking medicated abortions appear in person.

The order is here,  FDA v. American College of OB/GYNS (Jan. 12, 2021), with concurrence by Justice Roberts and dissent by Justice Sotomayor.

NYT, Supreme Court Revives Abortion Pill Restriction

In the Supreme Court’s first ruling on abortion since the arrival of Justice Amy Coney Barrett, the court on Tuesday reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person from a hospital or medical office.

The court’s brief order was unsigned, and the three more liberal justices dissented. The only member of the majority to offer an explanation was Chief Justice John G. Roberts Jr., who said the ruling was a limited one that deferred to the views of experts.

The question, he wrote, was not whether the requirement imposed “an undue burden on a woman’s right to an abortion as a general matter.” Instead, he wrote, it was whether a federal judge should have second-guessed the Food and Drug Administration’s determination “because of the court’s own evaluation of the impact of the Covid-19 pandemic.”

“Here as in related contexts concerning government responses to the pandemic,” the chief justice wrote, quoting an earlier opinion, “my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health.’”

In dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was grievously wrong.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Justice Sotomayor wrote. “Like many of those laws, maintaining the F.D.A.’s in-person requirements” for picking up the drug “during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose.”

January 13, 2021 in Abortion, Constitutional, Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, December 4, 2020

Tracing the Development of Gendered Violence as an Issue of Global Constitutional Law

Judith Resnik, Susanne Baer & Marta Cartabia, Women, Gendered Violence, and the Construction of the "Domestic" in Seeking Safety, Knowledge, and Security in a Troubling Environment: Global Constitutionalism 2020

This Chapter provides background material for conversations held at the 2020 Global Constitutionalism Seminar (a Part of the Gruber Program on Global Justice and Women’s Rights) at Yale Law School.

This Chapter begins with an examination of the centuries-long assumption that gender-based violence was a “private” issue meant that legislatures, law enforcement agencies, and courts were unresponsive. It then maps how social movements and critical lawyering reframed gendered violence as one form of subordination that is in fact a marker of inequality and provides examples of national and transnational law that debate the bases, contours, and implications of rights to be free from such oppression. Having explored what affirmative obligations governments have toward their own populations to protect against gendered violence, this Chapter considers whether international refugee law, humanitarian law, and jurisdictions’ own constitutional law require offering a haven for people escaping gendered violence. Across the world, many courts have read constitutions to require that law aim to provide protection against and safety from gendered violence. Such mandates for an active state presence (often through criminalization) contrast with traditional approaches in which courts have insisted that law not interfere when acts are marked as private, intimate, or domestic. This Chapter explores the demands on the state and the repertoire of remedies deployed when governments work towards achieving substantive equality.

December 4, 2020 in Constitutional, International, Violence Against Women | Permalink | Comments (0)

Monday, November 30, 2020

Understanding Sojourner Truth's Role in Passage of the Nineteenth Amendment and the Fight for Black Women's Rights

Lolita Buckner Inniss, "While the Water is Stirring": Sojourner Truth as Proto-agonist in the Fight for (Black) Women’s Rights, 100 Boston U. L. Rev. 1637 (2020)

This Essay argues for a greater understanding of Sojourner Truth’s little discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in particular, were created and sustained by the work of antebellum activists like Sojourner Truth, a towering figure who was tied to nineteenth-century movements for abolition and women’s suffrage. Sojourner Truth’s advocacy on behalf of women was premised upon a womanist approach to speech and action that centered the experiences of black women in the business of equal rights both in terms of race and gender. Sojourner Truth’s work as a justice-seeking sage with a goal of advancing the legal, political, and economic rights of women in general and black women in particular is a source of inspiration and a model for making contemporary black women protagonists and co-agonists—co-centric figures—in the work that is still much needed at the centennial of the Nineteenth Amendment.

November 30, 2020 in Constitutional, Legal History, Race | Permalink | Comments (0)

The Long History of Feminist Legal Theory

I've just posted a new book chapter, The Long History of Feminist Legal Theory, forthcoming in in The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna L. Williams eds. Oxford Univ. Press).

This chapter challenges the conventional idea that feminist legal theory began in the 1970s. The advent of legal feminism is usually placed in the second wave feminist movement, birthed by the political activism of the women’s liberation movement and nurtured by the intellectual leadership of women scholars newly entering legal academia. However, legal feminism has a much longer history, going back more than a century earlier. While the term “feminist” was not used in the United States until the 1910s, the foundations of feminist legal theory were first conceptualized as early as 1848 and developed over the next one hundred and fifty years. This chapter traces that development. It begins with the establishment of the core theoretical precepts of gender and equality grounded in the surprisingly comprehensive philosophy of the nineteenth-century’s first women’s rights movement ignited at Seneca Falls. It then shows how feminist legal theory was popularized and advanced by the political activism of the women’s suffrage movement, even as suffragists limited the feminist consensus to one based on women’s maternalism. Progressive feminism then expanded the theoretical framework of feminist theory in the early twentieth century, encapsulating ideas of global peace, market work, and sex rights of birth control. In the modern era, legal feminists gravitated back to pragmatic and concrete ideas of formal equality, and the associated legalisms of equal rights and equal protection. Yet through each of these periods, the two common imperatives were to place women at the center of analysis and to recognize law as a fundamental agent of change.

 

November 30, 2020 in Books, Constitutional, Legal History, Theory | Permalink | Comments (0)

Monday, November 23, 2020

Leveling Up or Leveling Down Equal Protection Remedies - The Trump Challenge to the PA Election

In the recent case of the Trump challenge to the Pennsylvania votes, garnering much scholarly attention, one issue is the appropriate remedies for equal protection violations and the question of leveling up or leveling down. See Trump for President v. Boockvar, (M.D. Pa. Nov. 21, 2020). Plaintiffs allege an equal protection violation from some counties allowing correction or curing of defective mail in ballots, but not other counties including theirs.  They seek the remedy of invalidating the votes that were allowed to be corrected rather than allowing theirs to be cured.

The Supreme Court addressed this issue in the 2017 case Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).  And I wrote about it extensively in,  Leveling Down Gender Equality, 42 Harvard J. Law & Gender 177 (2019), challenging the Court's decision in Morales-Santana leveling down the remedy for gender discrimination against fathers in grants of citizenship.

I think the district court gets it right here in the PA case:  that the presumption is leveling up.  And it is arguably an easier case as leveling down threatens the fundamental rights of others. 

From the Boockvar decision:

Moreover, even if they could state a valid claim, the Court could not grant Plaintiffs the relief they seek. Crucially, Plaintiffs fail to understand the relationship between right and remedy. Though every injury must have its proper redress,116 a court may not prescribe a remedy unhinged from the underlying right being asserted.117 By seeking injunctive relief preventing certification of the Pennsylvania election results, Plaintiffs ask this Court to do exactly that. Even assuming that they can establish that their right to vote has been denied, which they cannot, Plaintiffs seek to remedy the denial of their votes by invalidating the votes of millions of others. Rather than requesting that their votes be counted, they seek to discredit scores of other votes, but only for one race.118 This is simply not how the Constitution works.

When remedying an equal-protection violation, a court may either “level up” or “level down.”119 This means that a court may either extend a benefit to one that has been wrongfully denied it, thus leveling up and bringing that person on par with others who already enjoy the right,120 or a court may level down by withdrawing the benefit from those who currently possess it.121 Generally, “the preferred rule in a typical case is to extend favorable treatment” and to level up.122 In fact, leveling down is impermissible where the withdrawal of a benefit would necessarily violate the Constitution.123 Such would be the case if a court were to remedy discrimination by striking down a benefit that is constitutionally guaranteed. Here, leveling up to address the alleged cancellation of Plaintiffs’ votes would be easy; the simple answer is that their votes would be counted. But Plaintiffs do not ask to level up. Rather, they seek to level down, and in doing so, they ask the Court to violate the rights of over 6.8 million Americans. It is not in the power of this Court to violate the Constitution.124 “The disenfranchisement of even one person validly exercising his right to vote is an extremely serious matter.”125 “To the extent that a citizen’s right to vote is debased, he is that much less a citizen.”126 Granting Plaintiffs’ requested relief would necessarily require invalidating the ballots of every person who voted in Pennsylvania. Because this Court has no authority to take away the right to vote of even a single person, let alone millions of citizens, it cannot grant Plaintiffs’ requested relief. 

116 Marbury v. Madison, 5 U.S. 137, 147 (1803).
117 Gill, 138 S. Ct. at 1934 (“A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.”) (citing Cuno, 547 U.S. at 353).

118 Curiously, Plaintiffs now claim that they seek only to enjoin certification of the presidential election results. Doc. 183 at 1. They suggest that their requested relief would thus not interfere with other election results in the state. But even if it were logically possible to hold Pennsylvania’s electoral system both constitutional and unconstitutional at the same time, the Court would not do so.
119 Heckler v. Matthews, 465 U.S. 728, 740 (1984) (internal citations omitted).
120 Id. at 741; Califano v. Westcott, 443 U.S. 76, 90-91 (1979).
121 E.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1701 (2017).
122 Id. (internal citations omitted).
123 See Palmer v. Thompson, 403 U.S. 217, 226-27 (1971) (addressing whether a city’s decision to close pools to remedy racial discrimination violated the Thirteenth Amendment); see also Reynolds, 377 U.S. at 554 (citing Mosley, 238 U.S. at 383).

However, it should be noted that Justice Ginsburg in Morales-Santana rejects this focus on particularized individual injury.  Even though that is the longstanding standard of standing, redressability, and remedies.  And what I, and other Remedies and Constitutional Law Scholars argued was the correct standard.   Instead, she finds that a equal protection remedy is sufficient if it corrects the unconstitutional government action.  

 

November 23, 2020 in Constitutional, Technology | Permalink | Comments (0)

Thursday, November 19, 2020

Justice ACB on Griswold

NPR, Supreme Court's Abortion Cases Could Threaten Birth Control Too

But many people overlook other things that could flow from new U.S. jurisprudence on abortion — such as erasing the right to birth control that the court recognized in a 1965 case, Griswold v. Connecticut. During her confirmation hearings, Barrett specifically refused to say whether she felt Griswold was correctly decided.

That was a flashing red warning light for Nancy Northup, president of the Center for Reproductive Rights, a legal advocacy group that argues cases on abortion and contraception. Roe, Northup says, is part of a century of jurisprudence based on the idea that the U.S. Constitution protects the liberty of individuals.

"It began with cases about how one educates one's children," Northup says, and includes same-sex marriage, contraception and abortion. You can't just take Roe out and not unravel the whole fabric."

Yet from what Barrett has said and written about the Constitution, Northup says, "it's clear she doesn't believe it protects the right to personal liberty."

NPR, On Contraception Case, Amy Coney Barrett Again Avoids Question

The 7-2 decision in Griswold v. Connecticut is viewed as the basis for Roe v. Wade, the 1973 ruling that legalized a woman's right to abortion nationwide.

Instead of directly answering Coons' question about whether the Supreme Court made the appropriate ruling in Griswold, Barrett said she found it unlikely that decision would ever be overturned.

"It seems unthinkable that any legislature would pass such a law" taking away the right to buy or use contraception, she said. "I think the only reason that it's even worth asking that question is to lay a predicate for whether Roe was rightly decided."

"I think that Griswold is very, very, very, very, very, very unlikely to go anywhere," she added.

November 19, 2020 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Monday, November 2, 2020

Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett

I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court.  Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court.  The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.

Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court

 

November 2, 2020 in Abortion, Constitutional, Courts, Healthcare, Judges, LGBT, Same-sex marriage, SCOTUS, Women lawyers | Permalink | Comments (0)

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)