Friday, July 30, 2021

New Book: The Woman Behind the Supreme Court's Decision in West Coast Hotel v. Parrish

Helen Knowles, Making Minimum Wage: Elsie Parrish v. West Coast Hotel Company

The US Supreme Court’s 1937 decision in West Coast Hotel v. Parrish, upholding the constitutionality of Washington State’s minimum wage law for women, had monumental consequences for all American workers. It also marked a major shift in the Court’s response to President Franklin D. Roosevelt’s New Deal agenda. In Making Minimum Wage, Helen J. Knowles tells the human story behind this historic case.

West Coast Hotel v. Parrish pitted a Washington State hotel against a chambermaid, Elsie Parrish, who claimed that she was owed the state’s minimum wage. The hotel argued that under the concept of “freedom of contract,” the US Constitution allowed it to pay its female workers whatever low wages they were willing to accept. Knowles unpacks the legal complexities of the case while telling the litigants’ stories. Drawing on archival and private materials, including the unpublished memoir of Elsie’s lawyer, C. B. Conner, Knowles exposes the profound courage and resolve of the former chambermaid. Her book reveals why Elsie—who, in her mid-thirties was already a grandmother—was fired from her job at the Cascadian Hotel in Wenatchee, and why she undertook the outsized risk of suing the hotel for back wages.

Minimum wage laws are “not an academic question or even a legal one,” Elinore Morehouse Herrick, the New York director of the National Labor Relations Board, said in 1936. Rather, they are “a human problem.” A pioneering analysis that illuminates the life stories behind West Coast Hotel v. Parrish as well as the case’s impact on local, state, and national levels, Making Minimum Wage vividly demonstrates the fundamental truth of Morehouse Herrick’s statement.

July 30, 2021 in Books, Equal Employment, Legal History, SCOTUS, Workplace | Permalink | Comments (0)

Tuesday, July 27, 2021

Documentary Preview, PBS ThinkTV, Let Ohio Women Vote

Documentary Preview, ThinkTV, Let Ohio Women Vote

Let Ohio Women Vote tells the story of the long fight for women’s suffrage in our state – a fight which created unpredictable alliances as well as surprising connections to national events. The documentary will premiere in the fall of 2021.

"As Ohio goes, so goes the nation."

July 27, 2021 in Constitutional, Legal History, Legislation, Media | Permalink | Comments (0)

Tuesday, July 13, 2021

The Equal Rights Amendment, Then and Now

Julie Suk, The Equal Rights Amendment, Then and Now, The Oxford Handbook of Feminism and Law in the United States (Deborah Brake, Martha Chamallas, & Verna Williams eds. 2021)

One hundred years in the making, the Equal Rights Amendment is the only proposed amendment to the U.S. Constitution that has met the requirements of Article V of the Constitution but has not been added to the Constitution due to a congressionally imposed ratification deadline. The Amendment guarantees that “[e]quality of rights shall not be denied or abridged by the United States or by any state on account of sex,” like gender equality guarantees in most constitutions around the world. This Essay exposes the unique trajectory of the Equal Rights Amendment to shed light on the process of feminist constitutional change and the evolution of substantive feminist legal aspirations. The revival of the ERA ratification process, decades after Congress’s deadlines, has generated transgenerational public meanings for a new body of gender equality law and public policy.

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

Monday, July 12, 2021

"We Have Been Here Before": SCOTUS and the Demise of Abortion Rights in Casey

Earl Maltz, We Have Been Here Before: Planned Parenthood of Southeastern Pennsylvania v. Casey and the Survival of Abortion Rights 

Nearly half a century after the landmark decision in Roe v. Wade, recent events have given supporters of the pro-choice position good reason to fear that the Supreme Court is likely to soon abandon its support for abortion rights. Although the Court recently struck down an anti-abortion statute in June Medical Services v. Russo, the balance of power in that case was held by Chief Justice John Roberts, whose opinion indicated that, in the future, he was likely to allow states to impose a wide variety of restrictions on access to abortions. Moreover, the pro-choice forces recently lost one of their staunchest allies when Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, whose nomination was roundly cheered by those who argue that Roe should be overruled. Thus, many observers believe that the Court is likely to use Dobbs v. Jackson’s Women’s Health Organization as a vehicle to eliminate or significantly undermine constitutional constraints on the ability of state governments to limit access to abortions.

However, we have been here before. In the decade between 1981 and 1991, Republican presidents who were openly critical of the decision in Roe had the opportunity to nominate five of the nine members of the Supreme Court. Moreover, during this period, the issue of abortion played an increasingly important role in the selection of those justices. Thus, by the early 1990s, most commentators believed that the anti-abortion forces were on the verge of claiming near-total victory in their campaign against Roe and its progeny. But despite the expectations of most commentators, in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a majority of the justices reaffirmed their support for the view that the Constitution protects the right of a woman to terminate her pregnancy without undue interference from the government, and thereby created a regime that has endured for almost three decades. This article will describe the sequence of events that led to the decision in Casey and culminated in the failure of the assault on abortion rights.

July 12, 2021 in Abortion, Constitutional, Judges, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Friday, June 4, 2021

Gender-Specific Criminal Justice Reform in California in the Early 1900s

Carolyn B. Ramsey, Women's Votes, Women's Voices, and the Limits of Criminal Justice Reform, 1911-1950,  
92 University of Colorado Law Review (forthcoming 2021)

On the eve of the Nineteenth Amendment’s ratification in 1920, Carrie Chapman Catt—the leader of the National American Woman Suffrage Association (NAWSA)—envisioned the establishment of a nonpartisan body dedicated to female voters’ political education that would help newly enfranchised women develop a voice in public affairs. To this end, Catt guided the conversion of NAWSA into a post-suffrage association called the National League of Women Voters (LWV). While Catt’s goal of training women for full citizenship was abstract, many state and local Leagues took a more practical approach, learning from the experience of tackling specific social problems. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California in reforming three aspects of the criminal justice system that affected women: courts, police, and prisons. It draws from the archival papers of the San Francisco Center of the LWV, as well as other primary sources, to reveal the contradictions and shortcomings, as well as the achievements, of newly enfranchised California women who sought to carry on the suffragists’ legacy.

During the four decades between 1911 and the middle of the twentieth century, the San Francisco Center advocated gender-specific approaches to crime with varying degrees of success or failure. Initially prompted to investigate the ills of lower-level criminal courts (known as “police courts”) by a local judge’s mishandling of rape cases, San Francisco clubwomen launched a full-fledged effort to establish a Women’s Court. Part I of this Article discusses the origins, goals, and limitations of the Women’s Court and the San Francisco Center’s subsequent campaign for the appointment of a female prosecutor and municipal judge. Although influenced by Progressive ideas about the use of specialized courts and trained experts, League members mostly confined their efforts to morals offenses that recalled the Victorian social purity movement, rather than seeking remedies for domestic violence and other aspects of crime that affected women.

Part II explores another project supported by the San Francisco Center that exemplified how Progressive tools might perpetuate essentially Victorian values. During the first half of the twentieth century, San Francisco clubwomen urged the SFPD, with little success, to hire a substantial number of female police officers. The San Francisco Center emphasized prostitution and other vices of “fallen” women as areas of law enforcement for which female officers supposedly possessed special skills. Limited both by the SFPD’s reluctance to hire women and female reformers’ myopic interest in preventing prostitution, the San Francisco Center doggedly pursued an agenda that entrenched gender segregation on the police force without bringing real remedies to systemic sexism or the victimization of women.

Part III describes the most revolutionary criminal justice reform project that members of the California LWV spearheaded in the first half of the twentieth century: the creation of a “prison without walls” for female offenders. Based on the notion that women who committed crimes, even felonies, might be taught law-abiding ways through education, hard work, and humane treatment, the Tehachapi prison experiment demonstrated that newly enfranchised female voters had gained traction in public life. However, while the creation and operation of the women’s prison gave substance to a rehabilitative ideal more forward-looking than many LWV proposals for moral enforcement, the male-dominated legal system created substantial impediments to the success of the Tehachapi facility.

The Conclusion assesses the contributions of the LWV and its state and local branches in California. Like their sisters in the national organization, members of the San Francisco Center worked tirelessly on social welfare issues and civil service reform, opening unprecedented paths to jobs and community involvement for women. In contrast, their criminal justice reform efforts were hampered, not only by the differing interests and continued power of male jurists, police chiefs, and prison officials, but also by the clubwomen’s obsession with prostitution. The affluent white activists of the San Francisco Center and the state-level LWV failed to advocate structural changes that might have liberated women, especially poorer and racial-minority women, from gendered violence. Yet despite the San Francisco Center’s limited success in obtaining justice for victims of sexual exploitation, integrating the San Francisco Police Department, and rehabilitating female offenders, its activities helped put women into public office and provide concrete opportunities for political engagement in the first few decades after suffrage was achieved.

June 4, 2021 in Courts, Legal History | Permalink | Comments (0)

Thursday, May 6, 2021

Connecting the Nineteenth Amendment to Broader Conceptions of Citizenship and Masculinities

Jamie Abrams & Nickole Durbin, Citizen Soldiers and the Foundational Fusion of Masculinity, Citizenship, and Military Service, 11 ConLaw NOW 73 (2020)

Sarah Livingston Jay famously toasted revelers in 1783: “May all our citizens be soldiers, and all our soldiers citizens.” This toast conveyed “a foundational fusion” within our republican government tradition―coupling military service, citizenship, and masculinities. The Akron Law School’s conference on the 100th anniversary of the passage of the Nineteenth Amendment offered the chance to fight the eulogization of the Nineteenth Amendment and explore its modern relevance. This paper concludes that the Nineteenth Amendment cannot be understood without connecting it to broader conceptions of citizenship, masculinities, and military service, thus revealing its ongoing relevance to military inclusion and integration. In Professor Abrams’ prior article published in the West Virginia Law Review, the foundational fusion of military service, citizenship, and masculinities was presented and explored. We highlight the framework ofthat argument in the next section and invite readers to explore the full prior article.

May 6, 2021 in Constitutional, Legal History, Masculinities | Permalink | Comments (0)

Tuesday, April 27, 2021

A Better Understanding of the History of Women Voting in New Jersey, 1776-1807

As I was preparing for a talk on the history of women's suffrage, I revisited some of the scholarship on women voting in early New Jersey.  This history jumped out at me in new ways this time for several key points asserted by the scholars studying it:

1.  Women's suffrage was a deliberate, intentional political act in the 1776 New Jersey Constitution

    - The Constitution includes "all inhabitants."

   - A 1790 Election Reform Act defined electors as "he or she."

 - The parties - Patriots, Federalists, and Republicans -- were divided in New Jersey and battled for power, seeking women to increase their support.  More generally, these American parties sought to attract support for the American Revolution generally by including women, opposing the Tories loyal to England who could not vote.

See Judith Apter Klingoffer & Lois Elkis, "The Petticoat Electors": Women's Suffrage in New Jersey, 1776-1807, 12 J. Early Republic 159 (1992)

Campbell Curry-Ledbetter, https://www.law.georgetown.edu/gender-journal/wp-content/uploads/sites/20Womens Suffrage in New-Jersey,1776-1807: A Political Weapon, XXI Georgetown J. Gender & Law 705 (2020)

New Jersey Let (Some) Women Vote from 1776 to 1807, JSTOR Daily (Mar. 2, 2020)

2.  There is new evidence of women voting in significant numbers, between 7-14% of the voters

    See On the Trail of America's First Women to Vote, NY Times (Feb. 24, 2020)

     There were property qualifications for voting - 50 pounds and land.  This excluded married women, who under coverture could not own property.  So the eligible female voters were femme soles (unmarried women) and widows.  As one lawmaker wrote in a newspaper in 1800: “Our constitution gives this right to maids and widows, white and black."

3.  Women were disenfranchise because they were portrayed as the source of voter fraud, because women were pliable, easily manipulated, not independent political actors and thus were mere political pawns.  This rationalized their official legislative disenfranchisement.   Lucy Stone later condemned this "scapegoating" of women, and its legacy suggesting women were illegitimate as voters.  The fraud claims certain offer some interesting parallels to voter disenfranchisement today.  See Klinghoffer & Elkis, supra; Curry-Ledbetter, supra.

April 27, 2021 in Constitutional, Legal History | Permalink | Comments (0)

Friday, April 23, 2021

Reclaiming the Long History of the "Irrelevant" Nineteenth Amendment

My latest article on the history and meaning of the 19th Amendment.

Part of the symposium with many great scholars in law, history, and gender including Jessica Clarke, Jill Hasday, Martha Jones, Serena Mayeri, Kyle Velte, Barbara Welke, and Joan Williams.

Tracy Thomas, Reclaiming the Long History of the "Irrelevant" Nineteenth Amendment, 105 Minnesota L.Rev. 101 (2021)

The Nineteenth Amendment has been called an “irrelevant” amendment.  The women’s suffrage amendment has been deemed insignificant as a constitutional authority, reduced to a historical footnote.  In the Supreme Court canon, it has been diminished as a text that “merely gives the vote to women.”  With the accomplishment of that simple task, the amendment has been assumed to offer little guidance to modern constitutional analysis or gender equality.  The Nineteenth Amendment has become a “constitutional orphan,” disconnected from its historical origins and precedential place in constitutional jurisprudence.

 

This constricting view of the Nineteenth Amendment ignores the structural implications and significant history of this gendered amendment and women’s seventy-two-year fight for equal citizenship.  Historical and legal narratives fail to capture a full understanding of the factual, legal, and normative steps and effects of the amendment.  This article seeks to correct that conventional narrative by offering a more inclusive, yet concise, overview of the Nineteenth Amendment.  The history demonstrates women’s longstanding demands for equal rights, the complexity of those demands, and the depths and racial tones of the opposition. The article then argues that this constitutional history is relevant to interpreting constitutional guarantees of gender equality today.  Using historical justifications, it joins other legal scholars in arguing for a more robust reading and constitutional meaning of the Nineteenth Amendment. 

April 23, 2021 in Constitutional, Gender, Legal History, Legislation | Permalink | Comments (0)

Monday, April 12, 2021

Corporate Governance and the Feminization of Capital

Sarah Haan, Corporate Governance and the Feminization of Capital 

Between 1900 and 1956, women increased from a small proportion of public company stockholders in the U.S. to the majority. In fact, by the 1929 stock market crash, women stockholders outnumbered men at some of America’s largest and most influential public companies, including AT&T, General Electric, and the Pennsylvania Railroad. This Article makes an original contribution to corporate law, business history, women’s history, socio-economics, and the study of capitalism by synthesizing information from a range of historical sources to reveal a forgotten and overlooked narrative of history, the feminization of capital—the transformation of American public company stockholders from majority-male to majority-female in the first half of the twentieth century, before the rise of institutional investing obscured the gender politics of corporate control.

Corporate law scholarship has never before acknowledged that the early decades of the twentieth century, a transformational era in corporate law and theory, coincided with a major change in the gender of the stockholder class. Scholars have not considered the possibility that the sex of common stockholders, which was being tracked internally at companies, disclosed in annual reports, and publicly reported in the financial press, might have influenced business leaders’ views about corporate organization and governance. This Article considers the implications of this history for some of the most important ideas in corporate law theory, including the “separation of ownership and control,” shareholder “passivity,” stakeholderism, and board representation. It argues that early-twentieth-century gender politics helped shape foundational ideas of corporate governance theory, especially ideas concerning the role of shareholders. Outlining a research agenda where history intersects with corporate law’s most vital present-day problems, the Article lays out the evidence and invites the corporate law discipline to begin a conversation about gender, power, and the evolution of corporate law.

April 12, 2021 in Business, Legal History, Theory | Permalink | Comments (0)

Thursday, April 1, 2021

The 19th Amendment's Antisubordination Theory as a Tool for Defeating LGBT Religious Exemptions

Kyle Velte, The Nineteenth Amendment as a Generative Tool for Defeating LGBT Religious Exemptions, Minnesota L. Rev. (forthcoming)

In the summer of 1920, women gained the right to be free from discrimination in voting when the Nineteenth Amendment was ratified. One hundred years later, in the summer of 2020, LGBT people gained the right to be free from discrimination in the workplace when the U.S. Supreme Court ruled in Bostock v. Clayton County that sexual orientation and gender identity (“SOGI”) discrimination is sex discrimination under Title VII. Yet, LGBT people continue to face discrimination in many contexts, a prominent example of which is the national campaign by Christian business owners to obtain religious exemptions from state public accommodation laws. What does women’s suffrage have to do with today’s religious exemption debates? This Article contends that there is a through-line from a radical, antisubordination strand of the history of the Nineteenth Amendment to today’s fight over religious exemptions from SOGI antidiscrimination laws.

The antisubordination strand of Nineteenth Amendment history envisioned women’s suffrage as about more than just the right to cast a ballot. This capacious view of the Nineteenth Amendment—as a means of dismantling sex-based hierarchies and ensuring full citizenship rights regardless of sex—would allow women to engage in all aspects of life, both political and civic. Between the ratification of the Nineteenth Amendment and today’s battles over SOGI religious exemptions stands 100 years of sex discrimination law. That era saw state legislatures enact public accommodation laws prohibiting sex discrimination in the public square; these laws extended to women the right of civic engagement and thus full citizenship. This body of sex discrimination law included the Court’s 1984 decision in Roberts v. United States Jaycees, which involved a challenge to one such law. The Jaycees Court upheld a public accommodation law against a claim that enforcement of the law—which would compel the Jaycees organization to admit women as full members—would violate the Jaycees’ First Amendment free speech rights. The Court reasoned that states have a compelling interest in eradicating sex discrimination in public. Jaycees expands the reach of the equality-enhancing aspect of the suffrage movement. It embodies the antisubordination strand of the women’s suffrage movement and stiches it into the fabric of the legal doctrine governing sex discrimination.

In today’s religious exemption cases, the Christian business owners argue that although the state has a compelling interest in eradicating race discrimination in the public square, it does not have a compelling interest in eradicating SOGI discrimination. This distinction, they argue, dictates that an exemption be granted vis-à-vis SOGI discrimination, even though such an exemption would be rejected vis-à-vis race discrimination. Bostock is the contemporary bridge that connects Jaycees to the SOGI religious exemption cases. Jaycees, in turn is the bridge back to the radical strand of the Nineteenth Amendment’s history: The Nineteenth Amendment was generative not simply of the right to vote, but of a commitment to full citizenship rights regardless of sex. That equality was formalized in state public accommodation laws, which Jaycees teaches serve a compelling state interest. Bostock, when coupled with Jaycees, directs the same conclusion for public accommodation laws that prohibit SOGI discrimination, namely that such laws serve a compelling state interest that defeats claims for religious exemptions.

 

April 1, 2021 in Constitutional, Legal History, LGBT, SCOTUS, Theory | Permalink | Comments (0)

Friday, March 19, 2021

More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality

Honored to receive the 2021 Beyer Award for Best Faculty Publication for my article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, XV Stanford J. Civil Rights & Civil Liberties 349 (2020).

The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling and reconstructing in order to support women’s equality and emancipation.

This paper first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women.

This long view of women’s rights shows that the movement was not solely about suffrage, but that the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. The legal history illustrates that “women’s rights” has always been a multiple issue, multiple systems platform, even as certain issues like suffrage or abortion have been isolated in the dominant public discourse, often driven there by opponents of gender equality. Appreciating the context and constitutional history of the Nineteenth Amendment supports a more robust understanding of constitutional guarantees of gender equality today, supporting interpretations of “equal protection” under the Fourteenth Amendment to encompass the full array of public and private rights.

March 19, 2021 in Constitutional, Gender, Legal History | Permalink | Comments (2)

New Book on the Rise of the Feminist Movement in the 1990s, "They Didn't See Us Coming"

They Didn't See Us Coming: The Hidden History of Feminism in the Nineties by [Lisa Levenstein]

Lisa Levenstein, They Didn't See Us Coming: The Hidden History of Feminism in the Nineties (2020)

From the declaration of the "Year of the Woman" to the televising of Anita Hill's testimony, from Bitch magazine to SisterSong's demands for reproductive justice: the 90s saw the birth of some of the most lasting aspects of contemporary feminism. Historian Lisa Levenstein tracks this time of intense and international coalition building, one that centered on the growing influence of lesbians, women of color, and activists from the global South. Their work laid the foundation for the feminist energy seen in today's movements, including the 2017 Women's March and #MeToo campaigns.

A revisionist history of the origins of contemporary feminism, They Didn't See Us Coming shows how women on the margins built a movement at the dawn of the Digital Age.

Hat tip Lisa Tetrault

March 19, 2021 in Books, Gender, Legal History, LGBT, Pop Culture, Theory | Permalink | Comments (0)

Thursday, March 11, 2021

The Story of Leser v. Garnett and the Nineteenth Amendment

Time, Votes for Women: How a Supreme Court Case Solidified the Right

Here’s what the case was about: Two Maryland women registered to vote a few months after the 19th Amendment passed. Oscar Leser, a judge, sued to have their names removed from the voting rolls, on the grounds that the Maryland constitution said only men could vote, and that Maryland had not ratified the new amendment to the federal constitution — and in fact, Leser argued, the new amendment wasn’t even part of the constitution at all. For one thing, he said, something that adds so many people to the electorate would have to be approved by the state; plus, some of the state legislatures that had ratified the amendment didn’t have the right to do so or had done so incorrectly.

The Supreme Court found that both arguments flopped: when suffrage had been granted to all male citizens regardless of race the Amendment had held up, despite the change to the electorate, and the ratification powers Leser questioned had in fact been granted by the Constitution. (And in a few states where things were iffy, it didn’t matter because enough other states had ratified.)

So, while the 19th Amendment granted women the right to vote, Leser made sure that the right could actually be used, even where the state constitution said otherwise. It’s not one of the more famous Supreme Court decisions in American history, but without it the electorate would be, well, lesser.

For scholarship on Leser v. Garnett, see Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford Press 2020) and Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism and the Family, 115 Harvard L. Rev. 945 (2002).

March 11, 2021 in Constitutional, Legal History, SCOTUS | Permalink | Comments (0)

Making the Case for Feminist Legal History

Erika Rackley & Rosemary Auchmuty, The Case for Feminist Legal History, 40 Oxford J. Legal Studies 878 (Dec. 2020)

It may be that we are witnessing a highpoint of interest in the lives of early women lawyers, and women’s legal history generally, both within and outside the academy, fuelled by the twin centenaries of the (partial) extension of the vote to women in 1918 and the formal admission of women to the legal profession the following year.1 Without doubt the anniversaries provide an opportunity to insert women into legal history (and history generally) and to mark the dedication, commitment and sacrifice of those involved in bringing them about. But without a strong scholarly method, politics and purpose, there is a danger that these celebrations will also encourage the proliferation of well-meaning but uncritical heroine narratives replete with myths and anecdote.

Feminist legal history provides a counter to this. Anchored in a commitment to disciplinary, social and political change, feminist legal history seeks not only to inform about women in law in the past, to uncover new histories, but also to challenge, and ultimately transform, our understandings of the past and present, and indeed the future. Its purpose is twofold: unlike its popular dopplegangers, typically focusing on women in the legal professions, feminist legal history is concerned with both ‘the production of knowledge of the past’ (an important end in itself, when so little is still known about women’s history) and, crucially, setting down ‘the substantive terms for a critical operation that uses the past to disrupt the certainties of the present’, opening up the possibility of imagining different futures.2

However, the doing of feminist legal history as an academic discipline and method remains largely undeveloped in the UK.3 This article seeks to address this absence by delineating its method, scope and purpose. We begin by exploring the exclusion of women and women’s engagement with policy and law reform more generally within traditional accounts of legal history. We go on to consider the methodological and substantive goals of feminist legal history, which relate both to the production of knowledge (by including women’s stories and establishing women as agents of change) and to feminist legal history’s disruptive purpose (by asking the ‘women’ question, challenging assumptions of progress, debunking heroine narratives and (re)locating the position and role of men). Drawing on examples of women’s experiences in and of law in the UK and Ireland, we seek to demonstrate the agency of women—both individually and in groups—in effecting legal, political and social change. We conclude with a call for scholars to take up the insights and methods of feminist legal history—to acknowledge the existence and different experiences of women in/and law, the ways they negotiated and fought to overcome the legal obstacles and opposition they faced (and still face)—before climbing onto their shoulders and continuing the fight for justice.

Historian TJ Boisseau and I similarly have argued for a feminist legal history in our book, aptly titled, Feminist Legal History (NYU Press 2011).  See also Tracy A. Thomas & Tracey Jean Boisseau, Law, History & Feminism, introduction to Feminist Legal History.

h/t Kimberly Hamlin

 

March 11, 2021 in Books, Legal History, Theory | Permalink | Comments (0)

Friday, March 5, 2021

Why March is National Women's History Month

Why March is National Women's History Month

the Education Task Force of the Sonoma County (California) Commission on the Status of Women initiated a “Women’s History Week” celebration for 1978.

The week March 8th, International Women’s Day, was chosen as the focal point of the observance....

In 1979, Molly Murphy MacGregor, a member of our group, was invited to participate in The Women’s History Institute at Sarah Lawrence College, which was chaired by noted historian, Gerda Lerner and attended by the national leaders of organizations for women and girls. When the participants learned about the success of the Sonoma County’s Women’s History Week celebration, they decided to initiate similar celebrations within their own organizations, communities, and school districts. They also agreed to support an effort to secure a “National Women’s History Week.

The first steps toward success came in February 1980 when President Carter issued the first Presidential Proclamation declaring the Week of March 8th 1980 as National Women’s History Week. In the same year, Representative Barbara Mikulski, who at the time was in the House of Representatives, and Senator Orrin Hatch co-sponsored a Congressional Resolution for National Women’s History Week 1981...

By 1986, 14 states had already declared March as Women’s History Month. This momentum and state-by-state action was used as the rational to lobby Congress to declare the entire month of March 1987 as National Women’s History Month. In 1987, Congress declared March as National Women’s History Month in perpetuity. A special Presidential Proclamation is issued every year which honors the extraordinary achievements of American women.

 

 

March 5, 2021 in Legal History, Pop Culture | Permalink | Comments (0)

Friday, February 19, 2021

Symposium: Intersections in Legal Gender Equality and Voting Rights One Hundred Years After the Nineteenth Amendment, Minnesota Law Review

Symposium “Glass Ceilings, Glass Walls: Intersections in Legal Gender Equality and Voting Rights One Hundred Years After the Nineteenth Amendment," Minnesota Law Review, April 1 & 2, 2021

The Nineteenth Amendment was a milestone for women’s rights but has often been criticized for being passed at the expense of people of color. Our 2020-21 Symposium will look back on the one hundred years since women were given the right to vote using a rough chronological approach. We will open the day with a historical overview of the Nineteenth Amendment, discussing who contributed to its ratification and who was left out after its passage. This background will create a basis for our subsequent gender equality conversations around the Equal Rights Amendment, Gender Identity and Sexual Orientation, and the #MeToo Movement, culminating in a panel discussing the current state of voting rights. Our Keynote speaker Desmond Meade will present about his role in fighting for legislative change in Florida to restore the right to vote to 1.4 million Floridians.

Registration for the Symposium is free and CLE credits are expected.

Symposium Speakers and Authors

Keynote Speaker: Desmond Meade, President and Executive Director of Florida Rights Restoration Coalition (FRRC)

As President and Executive Director of FRRC, which is recognized for its work on voting and criminal justice reform issues, Desmond led the FRRC to a historic victory in 2018 with the successful passage of Amendment 4, a grassroots citizen’s initiative which restored voting rights to over 1.4 million Floridians with past felony convictions. Amendment 4 represented the single largest expansion of voting rights in the United States in half a century and brought an end to 150 years of a Jim Crow-era law in Florida. Desmond is the author of the book “Let My People Vote” which shares the great journey of him crossing the finish line in restoring 1.8 million citizens’ right to vote.

Kat Calvin, Founder and Executive Director of Spread The Vote and Co-Founder and CEO of the Project ID Action Fund

Jessica Clarke, Professor of Law and FedEx Research Professor and Co-Director of the George Barrett Social Justice Program, Vanderbilt Law School

Jill Elaine Hasday, Distinguished McKnight University Professor and Centennial Professor in Law, University of Minnesota Law School

Phylicia H. Hill, Counsel, Economic Justice Project, Lawyers’ Committee for Civil Rights Under Law

Martha S. Jones, Society of Black Alumni Presidential Professor and Professor of History and the SNF Agora Institute, John Hopkins University

Serena Mayeri, Professor of Law and History, University of Pennsylvania Carey Law School

Terry Ao Minnis, Senior Director of Census and Voting Programs, Asian Americans Advancing Justice – AAJC, and Senior Fellow, Democracy Fund

Tracy A. Thomas, Seiberling Chair of Constitutional Law and Director of the Center for Constitutional Law, University of Akron School of Law

Kyle C Velte, Associate Professor of Law, University of Kansas School of Law

Joan C. Williams, Distinguished Professor of Law, Hastings Foundation Chair and Director of the Center for WorkLife Law at the University of California, Hastings Law

February 19, 2021 in Conferences, Constitutional, Gender, Legal History | Permalink | Comments (0)

Monday, February 1, 2021

Refuting the Claims that Pioneering Nineteenth-Century Feminists Were Anti-Abortion Advocates

Faye Dudden, Women's Rights Advocates and Abortion Laws, 31 Journal of Women's History 102 (2019)

In this article, historian Faye Dudden carefully and persuasively refutes the claims of modern pro-life activists that pioneering feminists Elizabeth Cady Stanton and Susan B. Anthony originated the "feminist" demand for anti-abortion laws and thus serve as appropriate figureheads for the modern movement.  (For example, in the appropriation of Anthony's name for the "Susan B. Anthony List," a pro-life fundraising and political action organization).  Dudden agrees with my own conclusions that 1) the historical evidence attributed to Stanton and Anthony is not theirs, but the work and beliefs of their male co-editor, former minister and abolitionist Parker Pillsbury, and that 2) other early feminists' personal dislike of abortion did not support legal regulation of women's autonomy. See Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law 176-85, 232-36 (NYU Press 2016); Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1, 2-68 (2012).

Ever since Roe v. Wade, opponents of legal abortion have invoked women’s history to justify themselves. A group called Feminists for Life (FFL) first came up with the idea that the founders of the women’s rights movement, including Susan B. Anthony and Elizabeth Cady Stanton, had opposed abortion and “worked to outlaw” it. FFL saw their historical vision widely adopted in the Right-to-Life movement in the early 1990s as it tried to appeal to younger women with pro-woman and “women-protective” arguments. When a political action committee was formed in 1993 to support anti-choice candidates, it doubled down on this historical claim by calling itself the Susan B. Anthony List. But FFL and kindred groups have played fast and loose with the evidence, as the historian Ann D. Gordon and others have already pointed out.

In fact, a number of early feminists expressed decided skepticism about outlawing abortion. They disliked abortion but thought anti-abortion laws did not apply “the proper remedies,” according to one nineteenth-century women’s rights pioneer. Such laws “do not touch the case,” declared another. FFL assumed that it was enough to show that “the original feminists condemned abortion in the strongest terms” to infer that they favored legal sanctions.  The sources show, however, that this assumption was wrong; feminists could condemn abortion but remain quite skeptical of its criminalization. This article revisits the sources and context to better understand how early women’s rights advocates thought about both abortion and abortion laws. While discussing disputed evidence in some detail, it goes beyond a verdict of “not proven” on Right-to-Life claims to argue that the early feminists’ insights about the law have lasting power.

h/t Kimberly Hamlin

February 1, 2021 in Abortion, Family, Legal History, Reproductive Rights | Permalink | Comments (0)

Recovering the Aspiration of the Equal Rights Amendment to Overcome Gendered Disempowerment in the Work of Pauli Murray

Julie C. Suk, A Dangerous Imbalance: Pauli Murray's Equal Rights Amendment and the Path to Equal Power, 107 Virginia L. Rev. Online 3 (Jan. 30, 2021)

This Essay recovers the aspiration of the 1970s ERA to overcome gendered disempowerment, which was most acutely experienced by Black women. That aspiration did not become part of the “de facto” ERA through Fourteenth Amendment litigation. Whether the ERA would sufficiently respond to “intersectional” discrimination, as it later came to be known, became a point of contention in Illinois’s 2018 ratification debates. This Essay begins by highlighting the leading roles that African American women legislators have played in sponsoring and framing the 1972 ERA in the three states that have ratified it after the statutory deadline. It posits that this should matter to the ongoing debates about the legitimacy of these post- deadline ratifications.  These states ratified the ERA long after the deadline imposed by an overwhelmingly white male Congress, but they did so as soon as women—including women of color and LGBTQ women—accumulated the modicum of power necessary to insist on their constitutional inclusion. These legislators’ twenty-first century vision of the ERA resonates with Pauli Murray’s testimony in favor of the ERA in congressional hearings in the 1970s, which built on her work as a member of the President’s Commission on the Status of Women, as a founder of the National Organization for Women in the 1960s, and as a board member of the ACLU.12 Murray built a strategy for women’s empowerment using the race equality victories under the Fourteenth Amendment as a template. Her writings laid the intellectual architecture for the gender equality victories won by Ruth Bader Ginsburg throughout the 1970s. Murray argued that African American women had the most to gain from an ERA,15 which could end their disempowerment, beyond merely winning litigated cases. The quest for empowerment, more so than doctrinal legal change, is driving the ERA’s twenty-first-century resurgence. Women seek empowerment not only to help themselves but also to help save democracy from dangerous abuses of power that threaten its legitimacy.

Part I begins in the present, highlighting the leadership and opposition by Black women in the state legislative debates leading to ERA ratification since 2017. Part II analyzes Pauli Murray’s 1970 written testimony to the Senate Judiciary Committee, in which she articulated African American women’s stake in the ERA for a congressional audience. Part III situates Murray’s vision of the ERA in the context of her 1960s writings for the President’s Commission on the Status of Women and as a co- founder of the National Organization for Women. Coining the term “Jane Crow” to focus on discrimination faced by Black women, Murray’s initial ambivalence about the ERA centered her work on a litigation strategy based on the Fourteenth Amendment. But by the end of the decade, she persuaded ERA skeptics, including colleagues at the ACLU, where she served on the Board, to pivot and support the ERA. Part IV develops the implications of Murray’s analysis of equal rights as equal power for contemporary efforts to overcome women’s underrepresentation in positions of power.

February 1, 2021 in Constitutional, Legal History, Race, Women lawyers | Permalink | Comments (0)

Tuesday, January 26, 2021

The Patchwork of Gender Equality: How State Equal Rights Amendments Can Impact the Federal ERA

Maryann Grover, The Patchwork Quilt of Gender Equality: How State Equal Rights Amendments Can Impact the Federal Equal Rights Amendment" 

After progress on the federal Equal Rights Amendment stalled in the late 1970s, states began to take matters into their own hands by adopting their own Equal Rights Amendments. In the forty-plus years since the federal Equal Rights Amendment was initially passed by Congress, twenty-eight states have adopted some form of their own Equal Rights Amendment. In that time, both state and federal courts have been tasked with interpreting these state Equal Rights Amendment. This decisional authority is uniquely relevant to the question of how the federal Equal Rights Amendment is likely to be interpreted if and when it is made a part of the United States Constitution. This essay endeavors to explore the subject matter areas in which state Equal Rights Amendment litigation has been prevalent and how that litigation is likely to impact the interpretation of the federal Equal Rights Amendment

January 26, 2021 in Constitutional, Legal History, Legislation | Permalink | Comments (0)

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)