Gender and the Law Blog

Same Sex Marriage Bill Clears Critical Hurdle in Congress

NYT, Same-Sex Marriage Rights Bill Clears a Crucial Senate Hurdle

The Senate on Wednesday took a crucial step toward passing landmark legislation to provide federal protections for same-sex marriages, as 12 Republicans joined Democrats to advance the Respect for Marriage Act, putting it on track to become law in the twilight of the Democratic-held Congress.

The 62-to-37 vote, which came only days after the midterm elections in which Democrats retained control of the Senate but lost the House to Republicans, was a rare and notable last gasp of bipartisanship by a lame duck Congress as lawmakers looked toward an era of political gridlock.

It also signaled a remarkable shift in American politics and culture, demonstrating how same-sex marriage, once a divisive issue, has been so widely accepted that a law to protect the rights of same-sex couples across the country could gain decisive, bipartisan majorities in both the Senate and the House. Last summer, 47 House Republicans joined Democrats to pass a version of the bill.

New Book Invisible Mothers, Unseen Yet Hypervisible After Incarceration

New Book, Invisible Mothers: Unseen Yet Hypervisible After Incarceration (UC Press)

Author Book Talk, Q&A With Janet Garcia-Hallett, Author of Invisible Mothers

Mothering is work. Yet, as I mention in my book, not all motherwork is equally visible, validated, or respected by the general public. This is especially true for mothers in the criminal legal system. Their experiences are unique because of the competing demands they face in oppressive carceral systems. Still, they did motherwork through varying housing arrangements, in noncustodial circumstances, while recovering from substance use, with low pay, during unemployment, and while not in contact with their children. All things considered, they did motherwork that was realistic for them and their circumstances post-incarceration – even if this went unnoticed or was undervalued by outsiders.

 

A Majority of State Constitutions Have Gender Equality Provisions

Brennan Center for Justice, State-Level Equal Rights Amendments: A Majority of State Constitutions have Gender Equality Provisions

In the United States, the fight for a federal Equal Rights Amendment has been a century in the making.

Meanwhile, state-level equivalents abound. Some are comprehensive provisions of state constitutions that guarantee equal rights regardless of an individual’s gender, and others are provisions that prohibit gender-based discrimination in specific circumstances.

State courts and constitutions are becoming increasingly important in the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization as well as federal courts’ growing hostility to many forms of civil rights protection. In the coming months and years, litigants may increasingly turn to state-level Equal Rights Amendments. 

What follows is a summary of the protections afforded in the 50 states. It is not intended to be exhaustive and may change and evolve in real time.

Neoshia Roemer Positions Haaland v. Brackeen in Reproductive Justice Framework

Neoshia Roemer published a robust summary of the upcoming Haaland v. Brackeen case to be argued before the Supreme Court on November 9th. This recent Gender Policy Report featuring Professor Roemer powerfully connects the Haaland case to issues of reproductive justice. 

The reproductive justice rights framework posits that all human beings possess three rights: the right to not have a child, the right to have a child, and the right to raise a child in a safe and healthy environment. Reproductive justice requires intersectional frameworks that respond to the needs of individuals who experience challenges to reproductive autonomy in a variety of ways.

As many have noted, feminist advocacy has often focused on the right to not have a child, or access to contraception and abortion. By focusing on the right to not have a child, the feminist movement did not always speak to the concerns of American Indian women and people. A reproductive justice framework applied to American Indians recognizes that Indian families deserve to have children and exist in safe and healthy environments. 

Summarizing the case, Professor Roemer writes:

In Haaland v. Brackeen, the U.S. Supreme Court will hear the claims of three sets of adoptive parents, a biological parent, three states, four Indian tribes, and the federal government.  The Court will determine whether ICWA is unconstitutional on potentially three grounds that include arguments such as states’ rights to regulate families, Congress’ ability to pass legislation like ICWA, and whether ICWA is an impermissible race-based statute. The impetus for the Plaintiffs in the original lawsuit is simple and two-fold. Some prospective parents wanted to adopt Indian children and claim that the ICWA is “outdated”, while some states believe that they should not have to implement ICWA at the behest of the federal government. The crux of the argument here is that the USA does not need a law that would protect the reproductive rights and sovereignty of American Indians.

Abortion Bans Preventing Access to Cancer Care

During Summer 2022, while I was taking a break from blogging for health reasons, I published this Op. Ed. with NBC News. I cautioned that abortion bans would quickly create a tale of two healthcare systems for pregnant women far beyond abortion access, focusing on my own experiences with breast cancer as I moved employment from Kentucky to Virginia. 

The ACLU of Ohio has now submitted affidavits in court documenting this occurrence along with many other harms to pregnant persons. The filing describes a woman with stage III melanoma who was was forced to suspend cancer care until she terminated her pregnancy, which she could not do legally in Ohio. 

An Article published by Katherine Van Loom, MD, and Jordyn Silverstein, MD, in JAMA Oncology (August 2022) reports that 

Approximately 1 in 1,000 pregnancies are affected by a concurrent cancer diagnosis. The most common cancers include breast cancer, cervical cancer, lymphoma, ovarian cancer, leukemia, colorectal cancer and melanoma. Termination of the pregnancy occurs in 9% to 28% of cases, with many occurring in the first trimester.

The 19th reported on this issue in its article Abortion Bans are Preventing Cancer Patients from Getting Chemotherapy. Shefali Luthra, writing for The 19th on October 7th explained the complexities: 

Those are often emotionally fraught conversations . . .  particularly for patients who intended to become pregnant and did not know about their cancer. If the disease is still in its early stages, some may attempt to surgically remove it, then wait for the pregnancy to reach its second trimester. If needed, they can begin chemotherapy at that point, hoping that the cancer has not progressed too far in the meanwhile. 

 

But others, particularly those whose cancer is already more advanced, may need to get an abortion, begin chemotherapy and then try to become pregnant after, once they have completed treatment. There are even further complications there since chemotherapy can damage someone’s fertility. 

 

In those cases, telling patients that they cannot receive an abortion in state becomes even more difficult. * * * “And then you have to say, ‘By the way, the state of Tennessee doesn’t think you’re dying enough, so for you to get the care you need now that you’ve made this tough decision, you have to go to an abortion clinic out of state.”

Remote Work as Reinforcing Gender Inequality and the Difficulty of Work-Life Balance

Tammy Katsabian, The Work-Life Virus: Working from Home and its Implications for the Gender Gap and Questions of Intersectionality, Forthcoming in the Oklahoma Law Review

Work–life balance is considered to be the top challenge for working women globally. The COVID-19 pandemic catalyzed a worldwide experiment regarding the various components of this challenge and its possible solutions. Because the pandemic forced numerous workers to shift their working lives from the office to their private homes, it created the largest global experiment in remote work in human history, with implications for women’s equality.

As this article wishes to show, the phenomenon of remote work illuminates gender inequality and the difficulty of work–life balance. Since remote work is mainly conducted from the personal residence of the employee, it generates a hybrid private–professional site and brings to the workplace context the private characteristics of the employee. Thus, remote work exposes how women’s traditional role in the private sphere—caregivers—influences their ability to progress at work. The ubiquity of the trend of remote work during the pandemic also revealed what third-wave feminism argued long ago: the feminine experience is not unitary; different women must cope with different difficulties. The pandemic showed that the ability to shift to remote work and successfully balance work with familial duties is not uniform among women. Questions of financial and marital status are also part of this equation.

It appears that working from a distance with the help of technology will become the most prominent way to conduct work in the future. Unless different regulatory models are developed, the current massive telecommuting trend has the potential to strengthen gendered and socioeconomic inequalities in U.S. society. Against this background, this article suggests a model for a solution that considers private–professional hybridity and both employers and governmental authorities. In this way, the article offers broad systemic solutions intended to diminish the effect of an employee’s familial and socioeconomic background on her ability to shift to telework on an equal basis with others and, in doing so, participate equally in the digitalized labor market of the future. 

Restorative Approaches to Intimate Partner Violence and Sexual Harm

Donna Coker, Restorative Approaches to Intimate Partner Violence and Sexual Harm, Ohio State Journal on Dispute Resolution, Vol. 36, No. 5, 2021

The last several years have seen a dramatic increased interest in the U.S. for the use of Restorative Justice (RJ) responses to intimate partner violence (IPV) and sexual harm. This change is most apparent in sectors of the mainstream feminist anti-violence movement and is reflected (unevenly) in public policies. I have described this shift as a “reimagined movement to end gender violence.” This reimagining project encompasses not only a less carceral response to harm, but a greater focus on changes in the social conditions that create and maintain violence. It is focused on economic and racial justice, on better responses to trauma, and on violence interruption that relies less on the state and more on community. Additional changes in the RJ movement and the anti-mass incarceration movement have converged to create a moment of opportunity for significantly transforming responses to IPV and sexual harm. These movements and policy trends provide an opportunity for less punitive and non-carceral responses to IPV and sexual harm, including RJ, and simultaneously for RJ responses that are intentionally gender- and race-conscious, attending to both individual and system change.

The most common understanding of RJ practice is that in response to a specific harm, the stakeholders affected come together address the harm. The harm or injustice sought to be addressed may be interpersonal and regard recent events or it may be a historical harm or involve institutional responsibility. For cases involving contemporary harm, the common conception of RJ is a process that involves what I have termed matched dialogue—that is, a dialogue that, at a minimum, includes the person(s) who caused harm and the person(s) they harmed.

While matched dialogue describes a significant amount of RJ programming, it is an incomplete description. There are practices and programs centered on responses to specific contemporary harms that do not involve matched dialogue and there are restorative practices that are not centered on a response to harm, but rather on community-building, prevention, education, and empowerment.

I provide an overview of this broader understanding of restorative justice as it relates to responses to and prevention of IPV and sexual harm. I include descriptions of three distinct processes and describe some of the benefits of matched dialogue restorative responses to IPV and sexual harm, concluding with some cautions. I also describe the growing number of RJ programs that are community-based prevention, education, and community building.

 

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The Common Law History of Unwed Motherhood and the Right to Procreation

Lauren Gilbert, To Procreate or not to Procreate: A Right to Self-Determination, Human Flourishing: The End of Law, Forthcoming

Real stories of pregnant women, past and present, shed light on how our laws have evolved to ensure greater recognition of a woman’s fundamental right to reproductive and family autonomy. Today, these rights are in jeopardy. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Center overturning the abortion right frames the issue in terms of the states’ interest in protecting human life; yet the implications for women’s health and human dignity are ignored. I look at several case studies implicating reproductive rights from 1924 to now. I then address Dobbs, concluding that the decision, by focusing on 1868 when women were excluded from the political process, disregards developments in women’s rights in the 20th century, defines fundamental rights too narrowly and ignores evidence of animus towards women seeking to control their reproductive destinies.

In Part I, I briefly review the common law history and treatment of unwed motherhood. In Part II, I recount some less well-known but illuminating details of the family history of Carrie Buck, who was forcibly sterilized in Virginia after the Supreme Court’s 1927 decision in Buck v. Bell. In Part III, I discuss the case of Anna Buck, who, to preserve her place in her community, hid her pregnancy and gave her baby, the bastard daughter of my great-grandfather, up for adoption. In Part IV, I tell my own story of single motherhood and the choices I made, including my own decision to have an abortion while I was living in Costa Rica, where abortions were illegal. In Part V, I discuss the Dobbs decision, and how its formalistic due process and equal protection analyses are compartmentalized so as to read out of existence any potential violations of a pregnant woman’s rights. I conclude that Dobbs is fundamentally flawed because, by focusing on 1868, a time when women were excluded from the political process, it disregards developments in women’s rights in the 20th century, defines the fundamental rights at stake too narrowly and, in finding no equal protection violation, ignores the evidence of animus towards women who seek to control their reproductive destinies.

Elizabeth Kukura on "Punishing Maternal Ambivalence"

Elizabeth Kukura has posted her essay, Punishing Maternal Ambivalence, on SSRN. The work is published in 90 Fordham Law Review 2909 (2022). The abstract previews:   

There are certain landmarks on the road to parenthood that together comprise a cultural narrative about becoming a parent, a narrative that many aspire to emulate and that some achieve: celebrating a (heterosexual) marriage with a big wedding; a positive pregnancy test leading to overjoyed reactions; first ultrasound pictures hung on the fridge (and shared on social media); a healthy pregnancy with baby showers and nesting to prepare for the new arrival; maternity photo shoots and babymoons to celebrate the final moments before life changes; and finally, an uncomplicated labor and delivery that, in an instant, transform the couple into parents. These rituals and experiences are culturally salient, confirming that the participants are conforming to societal expectations about preparation and fitness for parenthood.But the transition from not being a parent to being a parent can take many different forms and embody different types of social meaning for the people involved. For some women, becoming a parent is much more fraught than the cultural narrative outlined here because they feel ambivalent about being a parent or about adding an additional child to their families. Maternal ambivalence has important, usually negative, social meaning and, increasingly, also legal significance for the mothers, children, and families involved. But the experience of ambivalence is usually invisible— something individual women feel privately and will perhaps share with trusted friends or a therapist, but which is not considered appropriate to discuss more publicly. The cloak of silence shielding these feelings from public awareness reflects the social stigma that attaches to maternal ambivalence, leading to emotional and psychological harm for some women who feel ambivalent about their pregnancies. The strength of this stigma enables feelings of ambivalence to be weaponized against pregnant and parenting women, sanctioning them for their deviance from social stereotypes regarding who is a “good” mother. This Essay explores the punishment of maternal ambivalence, drawing on three case studies to illustrate the strength of the stigma that attaches to such feelings. In these cases, the stigma of ambivalence turns such feelings into a weapon for disciplining women who fall short of societal expectations for mothers. These women (and others like them) are marked by social disadvantage, either because they are women of color in a racist society or because they are economically marginal, relying on low-wage jobs or an abusive husband in order to survive. Their race and class status may contribute to their ambivalence, making them reluctant to have a child whose basic needs they may not be able to satisfy. Such statuses also mark them for scrutiny and criminal sanction in a way that reflects not only gendered stereotypes but also racialized and class-based stereotypes about parental fitness and about who is deserving of society’s compassion and empathy.

Reconsidering the Law's Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence

Benjamin C. Carpenter, Sperm is Still Cheap: Reconsidering the Law's Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence, Yale Journal of Law & Feminism, forthcoming 2022

Few issues in a divorce may be as emotionally charged, or have such long-term consequences, as disputes over the control of embryos a couple had created and cryopreserved during their marriage. Most men in this scenario, still able to have children naturally, have sought to prevent their ex-wives from having a child they no longer desire. For many women, though, the embryos reflect their best, and perhaps only, opportunity to have a child. The interests could not be more polar, yet there can be no middle ground—one party’s interests must yield to the other. To date, appellate courts in one-third of the states have addressed this issue and have overwhelmingly sided with the party seeking to avoid parenthood, expressly adopting a presumption against the use of the embryos. Only twice in nineteen cases has a court awarded the embryos to the party seeking to use them. Though gender neutral on its face, the effect of this presumption has disproportionately favored men. Courts have privileged men’s interests in avoiding the purely cognitive burdens of genetic parenthood, even when freed from any responsibilities of legal parenthood, above women’s interests and investments in experiencing genetic, gestational, and legal parenthood. This Article reconsiders courts’ and scholars’ prior arguments in support of the presumption and rejects that the outcomes simply reflect inherent biological differences between the sexes. Rather, the Article analyzes the decisions of the 125 judges who have now ruled on this issue, uncovers a distinct difference in outcome based on the judge’s gender, and argues the prevailing presumption against use reflects an implicit gender bias among judges. In doing so, the Article situates this issue as the latest in a long-line of male-centric approaches in American law to reproductive rights, autonomy, and parental responsibilities. As these cases are certain to increase in the coming years, this Article seeks to raise the consciousness of judges and legislators in the majority of states still to address the issue and to move the law toward a true balancing of both parties’ interests.

Maternal Instinct is a Myth that Men Created

NYT, Maternal Instinct is a Myth that Men Created

The notion that the selflessness and tenderness babies require is uniquely ingrained in the biology of women, ready to go at the flip of a switch, is a relatively modern — and pernicious — one. It was constructed over decades by men selling an image of what a mother should be, diverting our attention from what she actually is and calling it science.

It keeps us from talking about what it really means to become a parent, and it has emboldened policymakers in the United States, generation after generation, to refuse new parents, and especially mothers, the support they need.

New research on the parental brain makes clear that the idea of maternal instinct as something innate, automatic and distinctly female is a myth, one that has stuck despite the best efforts of feminists to debunk it from the moment it entered public discourse.

To understand just how urgently we need to rewrite the story of motherhood, how very fundamental and necessary this research is, it's important to know how we got stuck with the old telling of it.

 

Canadian Court Feminizes Child Support by Centering it as a Right of the Child

Jodi Lazare & Kelsey Warr, A Gender-Based Approach to Historical Child Support: Comment on Colucci v Colucci. Canadian Journal of Family Law 2022

In June 2021 the Supreme Court of Canada (the “Court”) released Colucci v Colucci, its second decision in twelve months dealing with the complex subject of historical (commonly referred to as retroactive) child support. The case worked a significant shift in the law, arguably the first major revision to the law since the Court’s initial consideration of historical child support in DBS, in 2006. This comment suggests that Colucci represents a new understanding of the way that claims for historical child support should be considered in Canadian family law. The comment argues that in changing the applicable framework, the Court has endorsed a gendered approach to historical child support law that responds to many of the concerns that flowed from DBS.

Drawing on the text of the decision, as well as relevant case law and scholarship, we outline the theoretical foundations for the changes brought by Colucci, as well as their practical implications. We suggest that in clarifying child support as the right of the child, decreasing the emphasis on certainty for payors, and stressing the necessity of financial disclosure, the Court has feminized the law of historical child support. We explain how, using that feminist lens, Colucci modifies the framework for adjudicating historical child support claims, by creating a presumption in favour of an award in the presence of a change of income, softening the three-year time limit of so-called retroactivity, and repositioning and reconceptualizing the DBS factors which now inform how far back a historical child support award should go. In fleshing out and analyzing these changes, we consider the ways in which Colucci may better serve to promote substantive gender equality in historical child support law by responding to women and children’s lived realities.

The Indian Child Welfare Act as Reproductive Justice

Neoshia Roemer, The Indian Child Welfare Act as Reproductive Justice. 203 Boston U. L. Rev. (2023)  

After decades of abuse through family regulation, Congress enacted the Indian Child Welfare Act of 1978 (“ICWA”) to prevent the breakup of Indian families and promote tribal sovereignty. While ICWA seems like an outlier that addresses one category of children, it is not an outlier. Rather, I argue that ICWA is a tool of reproductive justice. By formulating a legal rights framework for reproductive justice in American jurisprudence, I discuss how the reproductive justice movement is grounded in U.S. law beyond the right to terminate a pregnancy that the Supreme Court abrogated in Dobbs v. Jackson Women’s Health Organization. By looking at the history of reproductive rights in American Indian communities, I discuss how family regulation challenges reproductive rights and tribal sovereignty considering Dobbs and Oklahoma v. Castro-Huerta. Indian child removals exist in the same history, context, and policy that disrupted the reproductive rights of American Indian families and tribal sovereignty in other areas. Before concluding that ICWA is still good law and good policy to disrupt family regulation and protect the reproductive rights of American Indian peoples, I consider where challenges to ICWA in Haaland v. Brackeen fit into this paradigm and the ongoing need for the protection of tribal sovereignty and reproductive rights for American Indian peoples. For nearly 400 years, the disruption of reproductive rights, including family regulation, has been at the heart of federal Indian policy. The current frame of family regulation as “saving” children means that it is often divorced from the notion of reproductive rights. As the history behind and contemporary challenges to ICWA demonstrate, it should not, and cannot, be separated from the other reproductive justice issues facing American Indian communities. To strengthen legal protections for American Indian people that disrupt these government interventions, like ICWA, is to realize reproductive rights more fully in the United States.

New Book on the UK's Married Women's Association and Reform of Family Law in the Mid-20th Century

Sharon Thompson, Quiet Revolutionaries: The Married Women's Association and Family Law

This book tells the untold story of the Married Women's Association. Unlike more conventional histories of family law, which focus on legal actors, it highlights the little-known yet indispensable work of a dedicated group of life-long activists.

Formed in 1938, the Married Women's Association took reform of family property law as its chief focus. The name is deceptively innocuous, suggesting tea parties and charity fundraisers, but in fact the MWA was often involved in dramatic confrontations with politicians, civil servants, and Law Commissioners. The Association boasted powerful public figures, including MP Edith Summerskill, authors Vera Brittain and Dora Russell, and barrister Helena Normanton. They campaigned on matters that are still being debated in family law today.

Quiet Revolutionaries sheds new light upon legal reform then and now by challenging longstanding assumptions, showing that piecemeal legislation can be an effective stepping stone to comprehensive reform and highlighting how unsuccessful bills, though often now forgotten, can still be important triggers for change. Drawing upon interviews with members' friends and family, and thousands of archival documents, the book is compulsory reading for lawyers, legal historians, and anyone who wishes to explore histories of law reform from the ground up.

See also Sharon Thompson, The Untold Story of a Mid-20th Century Group of Women Fighting for Equality in Marriage and Why It Matters Today

In 1938, a group of feminist agitators came together in London to tackle what they saw as the most pressing issue of their time: inequality in marriage. For the Married Women’s Association, the right to vote – won for women over 30 in 1918 – was just the beginning of women’s emancipation. The legal status of housewives was next.

If you were a married woman in the early 20th century, you had no rights in your home, nor in the housekeeping money your husband gave you, nor even in the bed you slept in, unless you had used your own money to buy it.

You were also paid less than men, while all the work in the home was exclusively your domain and was unpaid. Your husband, by contrast, would be paid an inflated income to support his dependants, termed a “family wage”, to which, ironically, you had no rights to whatsoever. In the eyes of the law, you were essentially invisible.

These women’s story has long been overlooked. As I show in my new book, Quiet Revolutionaries (and accompanying podcast), what they were fighting for remains highly topical.

Taking a Closer Look at Legal Treatment of Contracts of Sexual Agreements

Albertina Antognini & Susan Frelich Appleton, Sexual Agreements, 99 Wash. U. L. Rev. (2022)

Few would find it surprising that an agreement for sex falls outside the bounds of contract law. Prostitution—defined as an exchange of sex for money—has long been a crime, a point that courts often make in declining to enforce agreements between unmarried partners. In fact, courts routinely invalidate contracts when sex forms the basis of a couple’s bargain, whether married or not, and whether the sex is explicit or inferred from the relationship itself.

A closer look at the legal treatment of sexual agreements, however, tells a more complicated story. Although courts reject sex as consideration for being “meretricious” or “immoral” and invoke the illegality of prostitution as the reason for this limit, sex not only can form a part of some contracts, it is inherent to the very definition of certain relationships. While courts reject private agreements between spouses regarding sex, they nonetheless deem sex “essential” to the existence of marriage, and they quantify just how much sex matters when considering loss of consortium claims. Moreover, several contemporary developments cast doubt on the proposition that sex, or a perceived similarity to prostitution, must always doom agreements. In the parentage context, for example, legislatures and courts increasingly treat paid surrogacy arrangements as enforceable contracts, rejecting earlier arguments that emphasized the parallels to illegal sex work. Courts have also become more willing to acknowledge parentage agreements that involve sexual conception, and surrogate partner sex therapy and adult entertainment employment have escaped legal sanction. Beyond the incipient recognition of sexual arrangements as legal contracts, contract-based ideas have become salient in contemporary sexual regulation. Modern understandings of crimes like rape and sexual assault emphasize sexual autonomy and make consent and its absence the pivotal considerations, displacing earlier elements of force, resistance, gender, and nonmarriage.

This Article juxtaposes the traditional approach to sexual contracts with the emerging convergence of sex and contract. In so doing, this Article argues that what is frustrating couples’ contracts, both in and out of marriage, is neither sex, nor prostitution, but rather marriage itself. Given that sex is not actually differentiating the contracts that courts enforce from those they do not and given the various inequities that result from the current system, this Article ends by considering what it would mean to carry the contractual approach to its logical conclusion by recognizing sex itself as subject to contract.

The Precarity of SCOTUS's LGBTQ Jurisprudence

Kyle Velte, The Precarity of Justice Kennedy's Queer Canon, 13 ConLawNOW 75 (2022)

This essay gives a brief overview of the legal and normative of impact of Justice Kennedy’s Queer Canon, a series of four LGBTQ cases written by Justice Kennedy over nearly two decades. The pro-LGBTQ outcomes in the Queer Canon cases made Justice Kennedy a hero to many LGBTQ people. It then explores Justice Kennedy’s fifth, and final, LGBTQ opinion, Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case, which held that a traditional Christian baker would prevail on his First Amendment Free Exercise challenge to a state public accommodations law, was not the finale hoped for by the LGBTQ community. The essay next asks and answers the question: What will a post-Justice Kennedy Court mean for LGBTQ people and the 25 years of constitutional progress reflected in his Queer Canon? Through a comparative analysis of the Court’s two post-Justice Kennedy decisions, Bostock v. Clayton County and Fulton v. City of Philadelphia, Justice Kennedy’s Queer Canon, and his opinion in Masterpiece Cakeshop, this essay contends that the progress made during the Justice Kennedy era is a fragile progress, one that is under threat by the current Court.

Bills to Protect Rights to Contraception and Marriage Equality Pass US House

Bills to Defend Marriage Equality and Contraception Pass US House, Head to Senate

The U.S. House of Representatives this week passed two landmark pieces of legislation: the Respect for Marriage Act, which would grant federal recognition of both same-sex and interracial marriages, and the Right To Contraception Act, which would establish a right in federal law to obtain and use contraceptives.

Democratic leaders say both bills are a direct response to Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson which called on the Court to “reconsider” past rulings codifying rights to contraception access, same-sex relationships and same-sex marriage.

The bills now both head to the Senate, where Democrats need 10 Republican senators to consider and ultimately pass either bill.

CFP Centering Family Violence in Family Law

Call for Papers

Centering Family Violence in Family Law

Abstract Submission Deadline: July 22, 2022

from the Family Law Center, UVA School of Law and National Family Violence Law Center, GW Law School

We invite submissions to contribute to a roundtable about the place of domestic violence in family law and scholarship. Submissions should consist of a proposed abstract under 300 words. The roundtable will be held on January 20, 2023 at the University of Virginia School of Law.

Although evidence shows that family violence is endemic, family law continues to design doctrines and procedures around an image of families in which violence is exceptional. Significant new empirical research indicates that, despite extensive law reforms designed to require courts to address family violence, mothers in custody litigation who seek to protect their children from paternal abuse typically face resistance from judges, if not outright hostility. Moreover, most family lawyers are ill-equipped to effectively represent protective parents and at-risk children, especially in an unreceptive family court culture. Cf. Meier, Denial of Family Violence:  An Empirical Analysis and Path Forward for Family Law, 110 Geo. L. J. 835 (2022).

 

How would family law practice, scholarship, and teaching change if each centered the reality of family violence instead of treating it as exceptional? 

This roundtable will bring together a group of diverse participants to explore how the realities of family violence and judicial intransigence should affect core doctrines and practices in family law, such as allocating custody and establishing parenthood. Participants will also consider how concern for family violence should inform discussions of systemic reforms such as decriminalization, abolition of the child welfare system, and parenting after incarceration. The roundtable’s goal is to carve out new ways to think about how family law can respond to the failure of the law, scholarship, and the courts to appropriately deal with violence within American families. 

We offer the following “provocations” for new thinking about how to place family violence at the center of family law:

• Shared Parenting:  How might we talk about shared parenting and its appropriate place in child custody if we acknowledged the history of intimate partner violence and child maltreatment among many (possibly most) separating parents, both those that litigate and those that do not?
• Functional Parenting:  As we seek to expand parenting rights and recognition to functional parents, how can we ensure that abusive partners are not empowered to extend their abuse through parenting litigation (a well-documented problem among biological parents)?
• Pedagogy: How should we best integrate the realities of family violence in our teaching, particularly in broad courses such as Family Law, Criminal Law, and Child, Family & State?
• Formerly Incarcerated Parents:  As we work to reintegrate formerly incarcerated parents into the community and their families, how can we ensure that reintegration maximizes and protects healthy and caring parent-child relationships?
• The Child Welfare System:  As we work to reform the child welfare system and its known racial and class injustices, how can we best integrate the realities of family violence into such reforms to ensure they do not exacerbate the victimization of children or safe parents?
• A Supportive State:  As we develop state tools to affirmatively support familial stability and security, how should such policies change if family violence is pervasive rather than an aberrant imperfection? 

We are delighted to report that the Virginia Journal of Social Policy & the Law has agreed to publish eight short (5,000-word) papers from this gathering. We will be requesting drafts (3,000-5,000 words) one week in advance of the conference so they can be circulated and read by all participants. 

We plan to host the event in person, although the format may change depending on public health considerations. We will supply meals, and we have some funding available. If you need funding to attend, then please provide an estimate of your travel costs.  

Thank you.  Please submit abstracts to centeringfamilyviolence@gmail.com.  And please let us know if you have any questions!

The Theory of Constitutional Memory and its Silencing of Women's Voices and Citizenship

Reva Siegel, The Politics of Constitutional Memory, 20 Georgetown J. Law & Public Policy 19 (2022)

Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw—but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women’s quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law.

 

This Article introduces the concept of constitutional memory to explain this silence in our law. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law.

 

To illustrate, the Article examines a long-running tradition of suffrage argument that began before the Reconstruction Amendments and continued in evolving forms after the ratification of the Nineteenth Amendment: that women needed the vote to democratize the family. Two centuries of constitutional arguments are nowhere reflected in the United States Reports. As a consequence, constitutional doctrines about liberty and equality in the family appear to lack historical antecedents.

 

But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.

The Controversial Origins of Father's Day and its Connection with Women's Child Custody Rights

Wash Post, Father's Day Once was Highly Political--and Could Become So Again

Sonora Smart Dodd, whose father raised her and her siblings after their mother died in childbirth, was inspired to propose the holiday in 1910 after attending a church service honoring mothers. Even so, while federal law enshrined the second Sunday in May as Mother’s Day in 1914, it took another half-century for fathers to receive similar recognition, first with Lyndon B. Johnson issuing a presidential proclamation in 1966 and then with Congress enacting an official holiday in 1972.

 

For decades, there was less political will to honor fathers, especially because many men regarded the holiday as “silly.” Such thinking continues to this day, as some men celebrate being fathers by using the holiday as a ticket to spend a day at the golf course, enjoying hours on “their” day away from their children.

 

This understanding of Father’s Day, though, misses the ways in which Americans have used the holiday as a political vehicle. In the latter decades of the 20th century, Father’s Day was a key battleground regarding parental rights and responsibilities for activists radicalized by the nation’s rapidly shifting familial landscape. At the root of this politicization of Father’s Day — maybe surprisingly — was the history of divorce.***

 

Enter Father's Day.  As some feminists came to view child support enforcement as a key women’s issue, they turned to the new holiday as an opportunity to publicize their cause. In 1971, a group of women and children from the Association for Children Deprived of Support (ACDS) picketed the home of California assemblyman, and potential gubernatorial candidate, Robert Moretti on Father’s Day to press him to champion child-support reforms.

 

Several years later, in 1975, NOW chapters in Tulsa, Pittsburgh and Hartford, Conn., all participated in “Father’s Day Actions.” The Tulsa protesters promised, in a news release, that “Fathers who are not paying child support can expect that their names and the amounts they are in arrears will be announced” and publicly “displayed by mothers, children and concerned NOW members.” The Hartford women, for their part, laid a wreath at the door of the Superior Court of Connecticut to “mourn the loss of paternal responsibility by all the fathers involved in divorce, separation, and enforcement.”

 

Some divorced fathers, however, had their own political agenda for Father’s Day.

 

Fathers’ rights advocates objected to being used as “wallets” and claimed that their ex-wives purposely kept them from seeing their children in violation of visitation orders. In 1971, the National Council for Family Preservation — one of several failed attempts by fathers’ rights advocate Richard F. Doyle to form a robust national organization like NOW — urged its member groups to hold protests on the Saturday before Father’s Day, noting that fathers might “want to be elsewhere with their children on Sunday.” In a news release, Doyle called for the recognition of the “stupid and cruel divorce laws and practices that have made this holiday a mockery for countless fathers and children.”