Thursday, November 2, 2023

New Books "Young and Restless," A Legal History of Young Women's Role as Forces of Change

The orange cover shows a pixilated image of faces and raised fists. The text is violet.

Book Review: "Young and Restless" by Mattie Kahn

Girls to the Front!  In “Young and Restless,” Mattie Kahn returns young women and girls to their rightful role in the history books: as forces for change.

And although it is not the aim of a historical survey to be prescriptive, heartening inspiration can be found in “Young and Restless,” Mattie Kahn’s thoroughgoing examination of the role of young women and girls in America’s uprisings.

Her subjects have agitated on behalf of labor and voting rights, racial dignity and equality, sexual and reproductive freedom, freedom of speech and against climate change. The solutions she illustrates include objecting, resisting — and, yes, acting up, rather than sinking into sadness and accepting the unacceptable. By taking direct action in the service of shared values, in alliance with beloved communities for a better future, girls throughout American history have discovered a sense of personal agency, often during eras when their opportunities were sharply circumscribed. Sometimes they even changed history.

Kahn, whose stated aim is to write girls back into the historical record, also considers her subjects’ lives before and after their time in the trenches. Many of the young women who took on activist roles — especially those who lived before the mid-20th century — faced intense blowback, even as they inspired others to their causes. The book also examines the place of childhood itself as a battleground on which America’s culture wars have historically been fought.

The author maintains an admirable ability to complicate her own assertions — girls have been a force for progressive change, for instance, but also a force in reactionary movements

November 2, 2023 in Books, Legal History | Permalink | Comments (0)

Tuesday, September 26, 2023

Reconciling Domestic Violence Protections and the Second Amendment

Natalie Nanasi, Reconciling Domestic Violence Protections and the Second Amendment, Wake Forest L. Rev. (forthcoming)  

In March of 2023, the Fifth Circuit Court of Appeals held that individuals subject to domestic violence protective orders could not be required to give up their guns. The decision was the first of a federal court to overturn a firearm regulation pursuant to New York State Rifle & Pistol Association v. Bruen, a 2022 Supreme Court opinion that created a new standard for determining the constitutionality of gun restrictions. After Bruen, only laws that are “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster.

The Fifth’s Circuit decision in U.S. v. Rahimi, which the Supreme Court will review in the 2023-24 term, highlights the unworkability of the Bruen test. Women’s rights were virtually nonexistent when the Second Amendment was ratified. Domestic violence was tolerated, and it was not until nearly 200 years later that protective order statutes were enacted across the United States. Looking to the past to justify modern-day gun safety laws gravely threatens women’s rights and safety.

But Bruen does not require such a narrow reading. Significant historical and legal precedent exists for disarming dangerous persons, and those who have had protective orders entered against them undoubtedly fall into that category. This article’s feminist critique of Bruen demonstrates why its holding is deeply problematic, but it also shows that it is possible to both hew to Second Amendment jurisprudence and protect survivors of intimate partner violence.

September 26, 2023 in Constitutional, Legal History, SCOTUS, Violence Against Women | Permalink | Comments (0)

Tuesday, August 15, 2023

New Book Equality Unfulfilled: How Title IX's Policy Design Undermines Change to College Sports

New Book by Elizabeth Sharrow About Title IX "Equality Unfulfilled" is Published

Elizabeth Sharrow, associate professor of public policy and history, has published a new book, “Equality Unfulfilled: How Title IX’s Policy Design Undermines Change to College Sport” (Cambridge University Press, July 2023), examining the half-century legacy of the law’s passage.

As Sharrow and co-author James Druckman of Northwestern University explain in the book, the year 1972 is often hailed as an inflection point in the evolution of women’s rights. Congress passed Title IX of the Education Amendments of 1972, a law that outlawed sex-based discrimination in education. Many Americans celebrate Title IX for having ushered in an era of expanded opportunity for women’s athletics, yet 50 years after its passage sex-based inequalities in college athletics remain the reality. “Equality Unfulfilled” explains why, identifying institutional roadblocks – including sex-based segregation, androcentric organizational cultures and overbearing market incentives – that undermine efforts to achieve systemic change.

Drawing on surveys with student-athletes, athletic administrators, college coaches, members of the public and fans of college sports, it highlights how institutions shape attitudes toward gender equity policy. It offers novel lessons not only for those interested in college sports but for everyone seeking to understand the barriers that any marginalized group faces in their quest for equality.



The cover art for the book Equality Unfulfilled by Elizabeth Sharrow

August 15, 2023 in Books, Education, Legal History, Sports | Permalink | Comments (0)

Tuesday, August 1, 2023

New Book, The Women of NOW: How Feminists Built an Organization that Transformed America

Katherine Turk, The Women of NOW: How Feminists Built an Organization that Transformed America (2023)

In the summer of 1966, crammed into a D.C. hotel suite, twenty-eight women devised a revolutionary plan. Betty Friedan, the well-known author of The Feminine Mystique, and Pauli Murray, a lawyer at the front lines of the civil rights movement, had called this renegade meeting from attendees at the annual conference of state women’s commissions. Fed up with waiting for government action and trying to work with a broken system, they laid out a vision for an organization to unite all women and fight for their rights. Alternately skeptical and energized, they debated the idea late into the night. In less than twenty-four hours, the National Organization for Women was born.

In The Women of NOW, the historian Katherine Turk chronicles the growth and enduring influence of this foundational group through three lesser-known members who became leaders: Aileen Hernandez, a federal official of Jamaican American heritage; Mary Jean Collins, a working-class union organizer and Chicago Catholic; and Patricia Hill Burnett, a Michigan Republican, artist, and former beauty queen. From its bold inception through the tumultuous training ground of the 1970s, NOW’s feminism flooded the nation, permanently shifted American culture and politics, and clashed with conservative forces, presaging our fractured national landscape. These women built an organization that was radical in its time but flexible and expansive enough to become a mainstream fixture. This is the story of how they built it―and built it to last.


August 1, 2023 in Books, Legal History | Permalink | Comments (0)

Women Congress Members Argue that ERA Deadline Was Discretionary, and That Amendment is Already the Law of the Land

NYT, Democrats Try a Novel Tactic to Revive Equal Rights Amendment

Democrats in Congress are making a fresh push for the nearly century-old Equal Rights Amendment to be enshrined in the Constitution, rallying around a creative legal theory in a bid to revive an amendment that would explicitly guarantee sex equality as a way to protect reproductive rights in post-Roe America.

Senator Kirsten Gillibrand of New York and Representative Cori Bush of Missouri introduced a joint resolution on Thursday stating that the measure has already been ratified and is enforceable as the 28th Amendment to the Constitution. The resolution states that the national archivist, who is responsible for the certification and publication of constitutional amendments, must immediately do so.

It is a novel tactic for pursuing a measure that was first proposed in Congress 100 years ago and was approved by Congress about 50 years later but not ratified in time to be added to the Constitution. Proponents say the amendment has taken on new significance after the Supreme Court’s ruling last year in Dobbs v. Jackson Women’s Health Organization that overturned the abortion rights long guaranteed by Roe v. Wade.

“In light of Dobbs, we’re seeing vast discrimination across the country,” Ms. Gillibrand said in an interview. “Women are being treated as second-class citizens. This is more timely than ever.”***

Now, Ms. Gillibrand and Ms. Bush are trying a different approach: They are simply ignoring the issue of the expired ratification deadline altogether and introducing a resolution that argues that the E.R.A. is already the law of the land.***

“This is an opportunity to start fresh with a legitimate legal theory that has basis in constitutional law,” Ms. Gillibrand said, noting that the reference to the deadline was in the preamble, not the text of the amendment itself. “I believe President Biden can just do this. I’m going to make the legal and political argument over the next several months that this is something he can do.”

August 1, 2023 in Constitutional, Legal History, Legislation | Permalink | Comments (0)

Tuesday, July 25, 2023

New Book The Oxford Handbook of Feminism and Law in the US

Deborah Brake, Martha Chamallas & Verna Williams, The Oxford Handbook of Feminism and Law in the United States (Oxford 2023)

Combining analyses of feminist legal theory, legal doctrine, and feminist social movements, The Oxford Handbook of Feminism and Law in the United States offers a comprehensive overview of U.S. legal feminism. Contributions by leading feminist thinkers trace the impacts of legal feminism on legal claims and defenses and demonstrate how feminism has altered and transformed understandings of basic legal concepts, from sexual harassment and gender equity in sports to new conceptions of consent and motherhood. Its chapters connect legal feminism to adjacent intellectual discourses, such as masculinities theory and queer theory, and scrutinize criticisms and backlash to feminism from all sides of the political spectrum. Its examination of the prominent brands of feminist legal theory shows the links and divergences among feminist scholars, highlighting the continued relevance of established theories (liberal, dominance, and relational feminism) and the increased importance of new intersectional, sex-positive, and postmodern approaches.

Unique in its triple focus on theory, doctrine, and social movements, the Handbook recounts the history of activist struggles to pass the Equal Right Amendment, the Anti-Rape and Battered Movements of the 1970s, the contemporary movements for reproductive justice and against campus sexual assault, as well as the #MeToo movement. The emphasis on theory and feminist practice animates discussions of feminist legal pedagogy and feminist influences on judges and judicial decision making. Chapters on emerging areas of law ripe for feminist analysis explore foundational subjects such as contracts, tax, and tort law, and imagine feminist and social justice approaches to digital privacy and intellectual property law, environmental law, and immigration law. The Handbook provides a broad picture of the intellectual landscape and allows both new and established scholars to gain an in-depth understanding of the full range of feminist influence on U.S. law.

All star list of contributors include:

Jamie R. Abrams
Kathryn Abrams
Aziza Ahmed
Susan Frelich Appleton
Katharine K. Baker
Ann C. Bartow
Theresa M. Beiner
Stephanie Bornstein
Sarah M. Buel
Erin E. Buzuvis
Nancy Chi Cantalupo
Cinnamon P. Carlarne
Brenda Cossman
Bridget J. Crawford
Rosalind Dixon
Martha M. Ertman
Michele Estrin Gilman
Leigh Goodmark
Tristin K. Green
Brittany K. Hacker
Jennifer S. Hendricks
Tracy Higgins
Emily Houh
Anthony C. Infanti
Kristin Kalsem
Sally J. Kenney
Amelia Loughland
Linda C. McClain
Martha T. McCluskey
Ann C. McGinley
Hilarie Meyers
Melissa Murray
Jennifer Nedelsky
Michelle Oberman
Maria Ontiveros
Camille Gear Rich
Darren Rosenblum
Julie C. Suk
Sarah L. Swan
Tracy A. Thomas
Deborah A. Widiss
Mary Ziegler



July 25, 2023 in Books, Constitutional, Courts, Legal History, Theory | Permalink | Comments (0)

Monday, July 24, 2023

Reva Siegel on "How Dobbs Weaponizes Brown"

Reva Siegel has posted her forthcoming work in the Yale Law Journal on SSRN. The work is titled How Dobbs Weaponizes Brown: The Roots of Dobbs's History-and-Tradition Method in the Defense of Segregation. The abstract is excerpted below. 

In Dobbs v. Jackson Women’s Health Organization, the Roberts Court claimed authority for its decision to overturn Roe v. Wade by comparing itself to the Warren Court in Brown v. Board of Education overturning Plessy v. Ferguson. This Essay challenges the claim that Dobbs is like Brown by recovering history the Court omitted in Dobbs—omissions that enabled the Court to weaponize Brown as authority for overturning Roe.

Dobbs interpreted the Constitution’s liberty guarantee by counting state laws that banned abortion at the time of the Fourteenth Amendment’s ratification. In doing so, Dobbs employed a method of interpreting the Amendment popularized by those who opposed Brown. They defended Plessy as properly interpreting the Constitution’s equality guarantee by counting states whose laws segregated education in 1868. Brown repudiated this tradition-entrenching method of interpreting the Amendment and called upon the nation to align its practices with its constitutional ideals.

Examining the history Dobbs omitted helps us think critically about the justifications Dobbs offered for its method of interpreting the Fourteenth Amendment. Dobbs argued that its use of state counting in 1868 to enforce the Fourteenth Amendment’s liberty guarantee provided an objective standard that prevented interpreters from reasoning from their values and so protected democracy in the states. The history this Essay examines refutes each of these claims. Counting states that segregated education (or banned abortion) in 1868 was not a neutral or objective measure of the Constitution’s meaning; it expressed the interpreters’ values by perpetuating exclusions of the past into the future. The democracy it supported was a thin majoritarianism, democracy without rights that would protect the participation of those historically excluded from the democratic process. Race and gender conflicts over the abortion bans Dobbs authorized in Mississippi show how the liberty and democracy Dobbs protects perpetuate and entrench inequalities of 1868.

By reconstructing the lineage of arguments that state laws in 1868 are proxies for the original understanding, we can see how early forms of originalism and Dobbs’s history-and-tradition method grew out of resistance to Brown and backlash to the Warren and Burger Courts. Debate over Brown posed core questions about fidelity to the Constitution. We renew and sustain that debate on Brown’s seventieth anniversary as we ask how claims on the constitutional memory of Brown relate to its constitutional history.


July 24, 2023 in Abortion, Constitutional, Courts, Legal History, Race | Permalink | Comments (0)

Wednesday, July 12, 2023

SCOTUS to Hear Major Guns Case Involving Domestic Violence

Adam Liptak & Glenn Thrush, NYT, Supreme Court to Hear Major Guns Case Involving Domestic Violence

The Supreme Court agreed on Friday to consider whether the government may forbid people subject to domestic violence orders from having guns, setting up a major test of its ruling last year vastly expanding people’s right to arm themselves in public.

The case will turn on the scope of a new legal standard established in that decision, one whose reliance on historical practices has sown confusion as courts have struggled to apply it, with some judges sweeping aside gun controls that have been on the books for decades.***

In March, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, said that new standard required it to strike down a federal law prohibiting people subject to domestic violence orders from possessing firearms because there was no historical support for it.

The case, United States v. Rahimi, No. 22-915, concerns Mr. Rahimi, a drug dealer in Texas with a history of armed violence, according to court records. In 2019, Mr. Rahimi assaulted his girlfriend and threatened to shoot her if she told anyone, leading her to obtain a restraining order. The order suspended Mr. Rahimi’s handgun license and prohibited him from possessing firearms.***

But the appeals court reversed course after the Bruen decision last June.

The Fifth Circuit rejected a variety of old laws identified by the government as possible historical analogues, saying they did not sufficiently resemble the one concerning domestic violence orders. Many of them, Judge Cory T. Wilson wrote for the panel, “disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves and Native Americans.” That was different, he wrote, from domestic violence orders, which make case-by-case judgments about a particular individual’s dangerousness.

July 12, 2023 in Constitutional, Legal History, SCOTUS, Violence Against Women | Permalink | Comments (0)

On 75th Anniversary of Women's Armed Services Integration Act Recalling Black Women's Military Leadership Since the Civil War

Wash Post, Black Women's Leadership in the Military Dates to the Civil War

This month marks 75 years since passage of the groundbreaking Women’s Armed Services Integration Act, which permitted women to serve as full members of the U.S. armed forces in every branch. It also marks a decade since the Pentagon reversed its “ground combat exclusion policy.” That had allowed women to serve on combat ships, even though it banned them from serving in direct ground combat.

These changes have been monumental. While women represented just 2 percent of the U.S. military in 1948, they currently constitute roughly 18 percent of the armed forces. Yet a 2020 report shows that fewer than 1 percent of deployed active-duty combat troops are women. A fraction of them are African American women.

While the need to recognize and celebrate these historic milestones is paramount, these commemorations often forget that Black women led armies and fought behind enemy lines during the Civil War — long before President Harry S. Truman signed the historic legislation in 1948. Their military achievements have regularly been erased, eclipsed or distorted in service of building a national narrative that appealed to White Americans. Restoring this history to our understanding of the history of women’s role in the military helps us envision a national narrative that is both closer to the truth and that works for us all.

July 12, 2023 in Equal Employment, Legal History, Legislation, Race | Permalink | Comments (0)

Friday, June 30, 2023

Women Shortlisted for the US Supreme Court, A Conversation with Judge Diane Wood

Renee Knake Jefferson, Hanna Brenner Johnson & Diane Wood, "Shortlisted: A Conversation Between Judge Diane Wood, Renee Knake Jefferson, and Hannah Brenner Johnson" 106(3) Judicature 8 (2023)

This article includes an edited excerpt from the book Shortlisted: Women in the Shadows of the Supreme Court and a discussion with the authors led by Judge Diane Wood, a senior judge of the United States Court of Appeals for the Seventh Circuit. They discuss the book, the women who were passed over for seats on the Court, and the lessons their stories offer — for women judges and the legal profession as a whole.

June 30, 2023 in Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Wednesday, June 28, 2023

New Book The Patriarchs: How Men Came to Rule

Angela Saini, The Patriarchs: How Men Came to Rule


In this bold and radical book, award-winning science journalist Angela Saini goes in search of the true roots of gendered oppression, uncovering a complex history of how male domination became embedded in societies and spread across the globe from prehistory into the present.

Travelling to the world’s earliest known human settlements, analysing the latest research findings in science and archaeology, and tracing cultural and political histories from the Americas to Asia, she overturns simplistic universal theories to show that what patriarchy is and how far it goes back really depends on where you are.

Despite the push back against sexism and exploitation in our own time, even revolutionary efforts to bring about equality have often ended in failure and backlash. Saini ends by asking what part we all play – women included – in keeping patriarchal structures alive, and why we need to look beyond the old narratives to understand why it persists in the present.


The Patriarchs: How Men Came to Rule by [Angela Saini]

June 28, 2023 in Books, Gender, Legal History, Masculinities, Theory | Permalink | Comments (0)

Friday, June 23, 2023

New Book A Queer History of the Woman's Suffrage Movement

Book Talk, The Hidden Queer History of Boston Suffragettes

Author Wendy Rouse unearthed the stories of queer suffragettes in her book, "Public Spaces, Secret Lives: A Queer History of the Suffrage Movement," including some who lived in Massachusetts.

She joined WBUR's Morning Edition host Rupa Shenoy to talk about the local examples of queer people in the struggle for women's voting rights.***

"People are trying to erase the existence of gay and trans people in our present. But I think it's important that history reminds us that there have always been LGBTQ people and they will always exist."

June 23, 2023 in Books, Constitutional, Legal History, LGBT | Permalink | Comments (0)

Wednesday, May 17, 2023

How the 19th Century Comstock Obscenity Law a the Key to the Abortion Fight

Emily Bazelon, NYT, How a 150-Year Old Law Against Lewdness Became a Key to the Abortion Fight

Anthony Comstock, a 19th-century crusader against sexual liberty, was mocked as a prude in his own time, but wielded real power. He persuaded Congress in 1873 to pass the Comstock Act, written by and named for him, making it a federal crime to send or deliver “obscene, lewd or lascivious” material through the mail or by other carriers, specifically including items used for abortion or birth control.

By the 1960s, the Comstock Act had fallen out of use — narrowed by court rulings, partly gutted by congressional repeals — and it was made an unconstitutional relic by the Supreme Court’s decision in 1973 in Roe v. Wade, recognizing a national right to abortion. But it stayed on the books.

Now, Comstock is back, once more being wielded as a weapon by social conservatives. Their arguments use the language of the act to target the mailing of abortion pills, and they are pushing judges and the Biden administration to reopen seemingly long-settled questions.

NYT, What to Know About the Comstock Act

The Comstock Act’s definition of what was lewd material would be “radically unfamiliar” to people living today, according to Mary Ziegler, professor of law at University of California, Davis. Examples she cited included “somebody writing a letter to somebody asking them for a date if they weren’t married,” and “somebody mentioning the existence of an abortion in a newspaper.”

“The early Comstock Act enforcement is extraordinarily broad, and gets broader and broader,” Professor Ziegler said.

I have written some about the origins of the Comstock law: See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law 91, 174-75 (NYU Press 2016); Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).

See also Gender & the Law Blog, Siegel and Ziegler on SCOTUS, Mifepristone, and the 19th Century Comstock Act

For a fictionalized story of the crusader Anthony Comstock and feminist activist Elizabeth Cady Stanton, see Marge Piercy, Sex Wars: A Novel of Gilded Age New York

May 17, 2023 in Abortion, Constitutional, Legal History, Reproductive Rights | Permalink | Comments (0)

Tuesday, April 25, 2023

Senate Will Vote on Equal Rights Amendment This Week, 100 Years After it was First Introduced

Wash Post, Schumer Announces Senate Will Vote on the Equal Rights Amendment This Week

The Senate will vote on the Equal Rights Amendment this week — 100 years after it was first introduced in Congress — Senate Majority Leader Charles E. Schumer said Monday.

Schumer, speaking at Hunter College in New York, argued that the Supreme Court’s decision to overturn Roe v. Wade and efforts to limit access to the abortion pill mifepristone, as well as state-level actions to roll back women’s rights, have made the ERA and its protections more critical than ever.

“In this ominous hour of American history, the Equal Rights Amendment has never been as necessary and urgent as it is today,” Schumer (D-N.Y.) said in a statement Monday.

The proposed amendment to the U.S. Constitution would guarantee equal rights under the law regardless of sex — meaning the Constitution would clearly state that women have equal rights as men. While the amendment was introduced in Congress in 1923 by leaders of the suffrage movement, it only passed in March 1972.

Ms, Ahead of the First ERA Senate Vote in 40 Years, a Nationwide Petition Launches

Senate Majority Leader Chuck Schumer (D-N.Y.) just announced the first vote on the Equal Rights Amendment in the Senate in 40 years.

“The founding document has never been interpreted to guarantee that the rights of women and the rights of men as a class are simply equal,” said Schumer on Monday at a press conference at Hunter College in New York City. “That’s why I am calling for a vote on the Equal Rights Amendment.” The senator said the vote will happen “this week,” with floor debate on Wednesday and a vote on Thursday.

For more on the history of the ERA, see Tracy Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment (Holly McCammon & Lee Ann Banaszak, eds. Oxford Press 2018).

April 25, 2023 in Constitutional, Legal History, Legislation | Permalink | Comments (0)

Thursday, April 20, 2023

Siegel and Ziegler on SCOTUS, Mifepristone, and the 19th Century Comstock Act

Reva Siegel & Mary Ziegler, Our Victorian Supreme Court, Slate

The fate of mifepristone, a drug used in more than half of abortions in the United States, will now be decided by the same conservative justices who reversed Roe v. Wade, ending Americans’ right to legal abortion after nearly half a century of access. In its ruling on the mifepristone case last week, the 5th Circuit offered the Supreme Court an outline for a faux compromise: the divided three-justice panel did not revoke the original approval of mifepristone as Judge Matthew Kacsmaryk had (though the appeals court seemed open to doing so at a later stage of the litigation). Instead, the 5th Circuit proposed bringing back all kinds of limits and restrictions on the drug that haven’t been in effect since 2016: limiting its use to the first seven weeks of pregnancy (instead of 10 weeks) and requiring three in-person doctor visits instead of a telehealth consultation.

The kicker, though, was the 5th Circuit’s deployment of the Comstock Act, the 19th-century anti-vice law that has quickly become a centerpiece of anti-abortion attacks. While the court didn’t reach a definitive conclusion, it hinted that the Comstock Act makes it a crime to mail every drug or device intended or adapted for abortion.

The mifepristone case will reveal the true commitments of the conservative Supreme Court justices who reversed Roe in Dobbs v. Jackson Women’s Health Services. In that decision, the conservative justices claimed to be returning the abortion issue to the people, but was their talk of democracy just an excuse for supporting abortion bans? Will they now go further than Dobbs’ cherry-picked history by reviving Victorian laws that women had no voice in enacting in order to continue restricting abortion access?

April 20, 2023 in Abortion, Legal History, Reproductive Rights | Permalink | Comments (0)

Wednesday, April 19, 2023

Challenging Dobbs' Faulty Originalist History

Miranda McGowan, The Democratic Deficit of Dobbs, Loyola U. Chicago L.J. (forthcoming 2023). 

Overturning the fifty-year old constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization wrapped itself in the mantle of the rule of law. The Dobbs Court claimed that Roe and Casey had lawlessly departed from the Court’s established history and tradition test for determining whether an unenumerated right is fundamental and protected by the Constitution. The actual history and tradition test, Dobbs said, only protects a claimed right as fundamental if positive law had affirmatively protected it when the Fourteenth Amendment was ratified. Seeing only abortion restrictions in the relevant time period, Dobbs concluded that the right to abortion is not a fundamental right.

Rule of law values, however, condemn rather than justify Dobbs’s method and holding. Dobbs turns on an act of judicial discretion, one it neither acknowledges nor justifies. This Article reveals that, since the 1960s, the Court has relied upon least three versions of the history and tradition test for identifying fundamental rights. Dobbs created a fourth overtly originalist test that dates back only to the 2010 Second Amendment incorporation case, McDonald v. City of Chicago. The original and most established version from Griswold v. Connecticut, however, is dynamic, not originalist: this test draws on recent precedents as much as longer-standing legal traditions and acknowledges that any new fundamental right creates a precedent for future fundamental rights claims.

Stripped of its rule of law veneer, Dobbs can only justify its originalist methods and result by reference to the originalist, normative justification of popular sovereignty. But on that ground, too, Dobbs fails. Dobbs’s originalist history and tradition approach is fundamentally undemocratic and at war with the ideal of popular sovereignty. This Article demonstrates that the history surrounding women and abortion in the nineteenth century makes any popular sovereignty justification for Dobbs’s originalism impossible—as well as anachronistic and incoherent. The positive law protections for abortion or contraception that Dobbs demands never would have existed in the nineteenth century for reasons having nothing to do with “the people’s” views on abortion. Robust social norms about gender and sexuality guaranteed both women and men’s quiescence to the mid-nineteenth century wave of abortion restrictions. Without legal penalty, “the people,” in fact, obtained abortions and used contraceptives throughout the nineteenth century. Dobbs’s originalist error cannot remain confined to abortion if its methods are applied consistently. The Court claimed that Dobbs does not portend a reversal of other fundamental rights cases. If true, that fact condemns Dobbs as a selective application of its supposed premise—which is to say as a political act of judicial hypocrisy. Dobbs’s methods put contraceptive access right on the chopping block.

h/t Legal Theory Blog

April 19, 2023 in Abortion, Constitutional, Legal History, Reproductive Rights | Permalink | Comments (0)

Friday, April 14, 2023

How the History and Tradition Test of Dobbs Perpetuates Inequality

Reva Siegel, How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization, 60 Houston L. Rev. (2023)

In this Commentary, I show how the tradition-entrenching methods the Court employed to decide New York State Rifle & Pistol Ass’n, Inc. v. Bruen and Dobbs v. Jackson Women’s Health Organization intensify the gender biases of a constitutional order that for the majority of its existence denied women a voice in lawmaking and restricted women’s roles. The tradition entrenching methods the Court employed to decide Bruen and Dobbs elevate the significance of laws adopted at a time when women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law. The methods the Court employs are gendered in the simple sense that they tie the Constitution’s meaning to lawmaking from which women were excluded and in the deeper sense that the turn to the past provides the Court resources for expressing identity and value drawn from a culture whose laws and mores were more hierarchical than our own.

Sampling their recent opinions, Part II of this Commentary shows that the conservative Justices have repudiated past practices when those practices expressed racism or nativism to which the Justices objected. Yet, Part III of this Commentary shows that in Dobbs the conservative Justices embraced past practices as the nation’s history and tradition, counting abortion bans enacted with the support of the nineteenth-century anti-abortion campaign without scrutinizing evidence that the campaign mixed arguments for protecting unborn life with arguments that banning abortion would prevent ethnic replacement and would enforce wives’ marital and maternal roles. In Part IV, I suggest that Justice Alito might have refused to defer to prejudice of the past as he did in Espinoza v. Montana Department of Revenue if he saw religious liberty, rather than abortion rights, at stake.

There are several reasons for revisiting the claims about abortion, history, and tradition on which the Dobbs decision rests. Even if the Supreme Court itself never acknowledges Dobbs’s selective and inaccurate account of the historical record, as it acknowledged historical errors of Bowers v. Hardwick in Lawrence v. Texas, there is value in recognizing that the Court’s claims about the past have a politics. In demonstrating that the Court selectively defers to the past, this Commentary shows how the Court’s history-and-traditions method provides new justifications for enforcing old forms of status inequality. This Commentary builds the historical record critical to debates over the criminalization of abortion in state courts and legislatures. And it contributes to Professor Melissa Murray’s remarkable and wide ranging account of how the jurisprudence of Bruen and Dobbs is gendered: Children of Men: The Roberts Court’s Jurisprudence of Masculinity.

April 14, 2023 in Abortion, Constitutional, Legal History, Theory | Permalink | Comments (0)

Friday, April 7, 2023

Book Review: Queer Career--Sexuality and Work in Modern America

Guardian, "Work is About Belonging": LGBTQ+ People's History in the Workplace

In a new book, historian Margot Canaday studies the neglected history of queer people in American workplaces

There has been scant attention paid to queer people in the workplace, argues historian Margot Canaday in her fascinating new book Queer Career: Sexuality and Work in Modern America. “Queer people are one of the largest, but least studied, minority groups in the workforce,” Canaday said while speaking to the Guardian about her book.

According to her book, straight historians have tended to ignore the experiences of LGBTQ+ people in the workplace and queer researchers have focused on other aspects of community life, assuming that workplaces were uninteresting, because they weren’t places where LGBTQ+ were able to reveal their true identities. “There has been an assumption that the workplace has been a straight place that was not so revelatory for historians,” Canaday told me.

Canaday’s belief is that the conventional wisdom is wrong – in fact, the history of queer identities in the workplace has been much more complex and fascinating than previously assumed. “I think for all of us – queer or straight – work is about belonging and identity,” Canaday said. “But there are also things that are unique about work for queer people. For instance, it was a way gay people found other gay people. Or for folks who are gender non-conforming, there’s a way that work affirms that isn’t available anywhere else.”

Working off her hunch, as well as a desire to write a queer history that did not marginalize women, Canaday got to work interviewing queer-identified people who had participated in the labor force as far back as the 1950s.

April 7, 2023 in Books, Equal Employment, Legal History, LGBT | Permalink | Comments (0)

Thursday, April 6, 2023

Book Review, The Visibility Trap, Reviewing Anna Lvovsky's "Vice Patrol"

Kate Redburn, The Visibility Trap, 89 University of Chicago Law Review 1515 (2022)

Transgender people in the United States are under attack. From municipal policing to state legislation and federal administrative law, trans people face well-organized efforts to regulate non-normative gender identities out of existence. Within the transgender movement - and the broader LGBT legal movement of which it is a part - much of the debate over how to respond to apparent backlash turns on visibility politics. Some advocates herald visibility as the path to social justice, arguing that cultural representation that accurately portrays transgender lives will sway public opinion in favor of inclusion. A growing chorus responds that visibility without protection invites surveillance and backlash.

In her brilliant work of legal history, Vice Patrol, Anna Lvovsky disentangles the forms of cultural salience, stereotype, and self-representation that often fly under the banner of “visibility.” Lvovsky takes moments of mid-century gay visibility as her starting point, showing how media attention hardened stereotypes about gay culture. Those stereotypes had a curious afterlife in the legal system, leading to “epistemic gaps” between enforcement institutions. On her account, courts did more than showcase public debates over the nature of homosexuality: they established “binding truths” about queer life.

This essay reads contemporary anti-transgender policing and transgender civil rights struggles through Vice Patrol to explore possible escape routes from the visibility trap. Through a deeper understanding of the way criminal enforcement metabolizes popular representation, it encourages contemporary transgender advocates to develop a kind of strategic intelligibility, by distinguishing circumstances and situations where visibility to the state is more or less necessary and desirable.

April 6, 2023 in Books, Legal History, LGBT | Permalink | Comments (0)

Wednesday, March 29, 2023

Dorothy Kenyon and Pauli Murray: Their Quest for Sex Equality in Jury Service

Jennifer Brinkley, Dorothy Kenyon and Pauli Murray: Their Quest for Sex Equality in Jury Service,   
Tennessee Journal of Race, Gender, and Social Justice, Forthcoming

This article will look at the history of women and jury service, focusing on the work both Kenyon and Murray did to persuade courts that sex discrimination, like race discrimination, was unconstitutional. Jury service was an issue that advocates of equality could agree upon and Kenyon and Murray would use every resource at their disposal to obtain compulsory service for women. Part II gives a brief history of how women were excluded from juries in the United States. It provides popular culture references of the time, along with public opinion about whether women should serve. This clarifies the history surrounding jury service. Part III provides context on the lives of Dorothy Kenyon and Pauli Murray before they became a team. Their litigation strategy was strongly influenced by division in the women’s equality movement over how best to proceed to seek relief from sex discrimination. Some thought legislative change would be best, while others believed judicial reinterpretation was the proper pathway. The division, and its impact, is discussed. Part IV begins with a history of jury service litigation before various courts. In 1966, Kenyon and Murray co-authored the ACLU’s brief for a federal court case, White v. Crook, where they successfully challenged an Alabama statute restricting jury service only to white males. Prior to White, all sex-based discrimination challenges arguing a Fourteenth Amendment violation had failed. White wanted to successfully link the civil rights and women’s rights movements by showing the inferior status both groups experienced. This section gives details about the White case — the facts, arguments made, and ultimate victory. Following their work on White, Kenyon and Murray encouraged the creation of the ACLU Women’s Rights Project, which would place Professor Ruth Bader Ginsburg at the helm. In her brief for Reed v. Reed, where the United States Supreme Court unanimously struck down an Idaho law preferring males over females in administrating estate matters, Ginsburg gave credit to both Kenyon and Murray by listing them as co-authors. The Reed decision marks the first time the Supreme Court declared a statute unconstitutional based on sex-based differentials using the Equal Protection Clause of the Fourteenth Amendment. A discussion of the ACLU Women’s Rights Project and subsequent cases drawing on the strategies put forth in White provides evidentiary support of the important work Kenyon and Murray did to effect change. They built, step by step, a foundation on which Ginsburg, on behalf of the Women’s Rights Project, could be successful in arguing sex discrimination cases. Part V concludes with a summary of their friendship, outside of Kenyon and Murray’s activism.

March 29, 2023 in Courts, Legal History, Women lawyers | Permalink | Comments (0)