Wednesday, January 19, 2022
New Jersey Enacts the Freedom of Reproductive Choice Act Guaranteeing the Fundamental Right of Reproductive Autonomy
Gov. Phil Murphy on Thursday signed into law a bill protecting abortion rights, at a Teaneck ceremony where he was joined by former Senate Majority Leader Loretta Weinberg and other lawmakers who championed the bill.
Approved by the Legislature on Monday, the Freedom of Reproductive Choice Act guarantees "the fundamental right of reproductive autonomy." The scaled-back version of the bill doesn’t add a requirement that health insurers cover abortions and birth control at no cost out of pocket, as the original bill did.
“The United States Supreme Court is preparing to take a wrecking ball to its own precedent Roe v. Wade, and that would also demolish our case-law-based foundation here in New Jersey,” Murphy said Thursday outside the Teaneck Public Library. “Neither I nor those with me today can let that happen
The Anti-Immigrant Rhetoric of the Women's Suffrage Movement and its Effectiveness in Passing the Nineteenth Amendment
Kit Johnson, Rising Up Without Pushing Down: Lessons Learned From The Suffragettes' Anti-Immigrant Rhetoric, 94 St. John's L. Rev. 937 (2021)
American suffragist Elizabeth Cady Stanton famously wrote: “We hold these truths to be self-evident; that all men and women are created equal.” Yet when suffragettes spoke of “all” men and women, they were clear about exceptions. Immigrants did not qualify. Indeed, in her own address at the First Women’s Rights Convention, held in Seneca Falls, New York, in July 1848, Stanton said that “to have . . . ignorant foreigners . . . fully recognized, while we ourselves are thrust out from all the rights that belong to citizens, it is too grossly insulting to the dignity of woman to be longer quietly submitted to.”
This Article begins with an exploration of the anti-immigrant rhetoric of the suffragettes, noting how their nativist approach helped to secure the ultimate passage of the Nineteenth Amendment. Next, this Article explores modern parallels to the suffragettes’ story, where nativist approaches propelled success for movements around issues, people, and political parties. Finally, this Article calls upon the modern women’s movement to take a different path: rising up without pushing down.
Wednesday, January 12, 2022
Amicus Brief in Virginia v. Ferriero (D.C. Cir.)
SUMMARY OF ARGUMENT
The fight for constitutional equality is a long-term project, andprogress has been painfully slow. For the first 144 years of our Nation’s history, women were denied the most basic right of citizens in a democracy: the right to vote. Women who otherwise met all criteria for voting found themselves barred from the polls, simply because of their sex. Their absence from the polls contributed to the development of laws and institutions that persistently discriminate against women.
Today, women serve with distinction in the C-suite, on the floor of Congress, on the soccer field, in the White House, and in combat. Yet women still face persistent inequality in nearly every sphere. Women are consistently underrepresented in positions of power and overrepresented among those in poverty. Women are still paid only 82 cents for every dollar paid to men—and, for women of color, even less than that. Women also face an epidemic of domestic and sexual violence. These problems are particularly acute for Black women, Latinas, indigenous and Native American women, immigrants, lesbians, trans women, and single mothers.
In the face of this persistent inequality, the Equal Rights Amendment is as relevant today as it ever was. The ERA declares that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Drafted by Alice Paul and other suffragists in the 1920s, the ERA passed through Congress in 1972 with broad, bipartisan support. After the number of state ratifications stalled at thirty-five in the late 1970s, the fight for equality pressed forward, achieving steady progress on many fronts, including in public opinion. Today, Americans overwhelmingly support including an ERA in our Constitution. Three quarters of the States have now voted to ratify the ERA—satisfying the constitutional threshold—and there are active ratification efforts in every one of the unratified States. Yet the Archivist asks this Court to send the fight for constitutional equality back to square one.
This Court should reject that argument. The painfully slow progress toward equality makes it particularly important in this context to respect the plain text of Article V, which establishes a process for amendment that leaves no room for time limits. The ERA satisfied Article V’s amendment process in January 2020, when Virginia became the thirty-eighth State to ratify. Now that the ERA has been adopted, federal law requires the Archivist to publish it. See 1 U.S.C. § 106b. The seven-year time frame that Congress imposed in 1972 does not and cannot alter the process in Article V. The ERA’s time frame does not appear in the amendment itself; Congress placed it only in the resolving clause of its joint resolution. At a minimum, that choice means that Congress reserved for itself the power to change the time frame in a subsequent joint resolution—as it did in 1978.
More fundamentally, however, a time frame imposed unilaterally by Congress cannot stand in the way of an amendment that has met all the requirements for ratification under Article V. The validity of an amendment depends on the plain text of Article V, which provides that an amendment becomes “valid to all intents and purposes . . . when ratified by the legislatures of three fourths of the several States.” Although the Framers did not recognize women as equal, they created a process for amending the Constitution that could reflect changes in our Nation’s understanding of equality, even when those changes evolve over many years. The ERA reflects such a change.
Publication by the Archivist is an important step forward. To be sure, the legal effect of an amendment does not depend on any action by the Executive Branch, which has no role to play under Article V. But the Archivist’s current refusal to publish the ERA is itself an inappropriate intrusion of the Executive Branch into the ratification process. One of the practical consequences of that refusal is its impact on the ongoing efforts by activists to press for revision of state statutes that continue to discriminate on the basis of sex. Although some States may be willing to make those revisions even without federal recognition of the ERA, others will not. In that respect—among others—the district court was wrong to assume that publication by the Archivist will make no difference.
Wednesday, December 22, 2021
From Larry Solum, at the Legal Theory Blog:
The Legal Theory Bookworm recommends Intimate States: Gender, Sexuality, and Governance in Modern US History, edited by by Margot Canaday, Nancy F. Cott, & Robert O. Self. Here is a description:
Fourteen essays examine the unexpected relationships between government power and intimate life in the last 150 years of United States history.
The last few decades have seen a surge of historical scholarship that analyzes state power and expands our understanding of governmental authority and the ways we experience it. At the same time, studies of the history of intimate life—marriage, sexuality, child-rearing, and family—also have blossomed. Yet these two literatures have not been considered together in a sustained way. This book, edited and introduced by three preeminent American historians, aims to close this gap, offering powerful analyses of the relationship between state power and intimate experience in the United States from the Civil War to the present.
The fourteen essays that make up Intimate States argue that “intimate governance”—the binding of private daily experience to the apparatus of the state—should be central to our understanding of modern American history. Our personal experiences have been controlled and arranged by the state in ways we often don’t even see, the authors and editors argue; correspondingly, contemporary government has been profoundly shaped by its approaches and responses to the contours of intimate life, and its power has become so deeply embedded into daily social life that it is largely indistinguishable from society itself. Intimate States makes a persuasive case that the state is always with us, even in our most seemingly private moments.
And from the reviews:
2: The Comstock Apparatus, Jeffrey Escoffier, Whitney Strub, and Jeffrey Patrick Colgan
3: Morals, Sex, Crime, and the Legal Origins of Modern American Social Police, William J. Novak
4: The Commerce (Clause) in Sex in the Life of Lucille de Saint-André, Grace Peña Delgado
5: “Facts Which Might Be Embarrassing”: Illegitimacy, Vital Registration, and State Knowledge, Susan J. Pearson
6: Race, the Construction of Dangerous Sexualities, and Juvenile Justice, Tera Eva Agyepong
7: Eugenic Sterilization as a Welfare Policy, Molly Ladd-Taylor
8: “Land of the White Hunter”: Legal Liberalism and the Shifting Racial Ground of Morals Enforcement, Anne Gray Fischer
9: Sex Panic, Psychiatry, and the Expansion of the Carceral State, Regina Kunzel
10: The Fall of Walter Jenkins and the Hidden History of the Lavender Scare, Timothy Stewart-Winter
11: The State of Illegitimacy after the Rights Revolution, Serena Mayeri
12: What Happened to the Functional Family? Defining and Defending Alternative Households Before and Beyond Same-Sex Marriage, Stephen Vider
13: Abortion and the State after Roe, Johanna Schoen
14: The Work That Sex Does, Paisley Currah
Mae Quinn, Black Women & Girls and the Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, and the First Wave Youth Suffrage Movement, 43 Seattle L. 1237 (2020).
On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.
Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content; it also expands upon the historical sections in that work to draw connections among different civil rights movements and move beyond the limited dualistic narratives that have been offered to date regarding suffrage in this country. Although there is much more to learn and tell, this Article advances the important ongoing project of lifting up and celebrating the multilayered identities and contributions of Black women and girls who impacted United States youth enfranchisement—including Diane Nash, Carolyn Quilloin, and Philomena Queen.
Thursday, December 16, 2021
I just published The Long History of Feminist Legal Theory in the online edition of The Oxford Handbook of Feminism and Law in the United States (Deborah Brake, Martha Chamallas & Verna Williams eds. Nov. 2021).
The conventional idea is that feminist legal theory began in the 1970s, in the second-wave feminist movement. However, the foundations of feminist legal theory were first conceptualized much earlier, in 1848, and developed over the next century and a half through distinct periods of thought. That development began with the establishment of the core theoretical precepts of gender and equality grounded in the comprehensive philosophy of the nineteenth-century’s first women’s rights movement ignited at Seneca Falls. Feminist legal theory was popularized and advanced by the political activism of the women’s suffrage movement, even as suffragists limited the feminist consensus to one based on women’s maternalism. Progressive feminism then expanded the theoretical framework of feminist theory in the early twentieth century, encapsulating ideas of global peace, market work, and sex rights of birth control. In the modern era, legal feminists gravitated back to pragmatic and concrete ideas of formal equality and the associated legalisms of equal rights and equal protection. Yet through each of these periods, the two common imperatives were to place women at the center of analysis and to recognize law as a fundamental agent of change.
An earlier (non-paywall) version is available here: The Long History of Feminist Legal Theory (SSRN).
Wednesday, December 15, 2021
Mabel Ping-Hua Lee was born in China in 1896 but lived most of her life in the United States, where, due to the Chinese Exclusion Act, she had no path to naturalization until the law changed in 1943. Even though it would not benefit her for decades, Mabel Lee worked for women’s suffrage, leading the New York City Suffrage Parade on horseback at the age of only 16. Lee was the first Chinese woman to earn a PhD in Economics in the United States, graduating from Columbia University in 1921 with a dissertation entitled: “The Economic History of China: With Special Reference to Agriculture,” and then spent her life helping the Chinese community in New York City through her work with as director of the First Chinese Baptist Church of New York City.
Joining me to help us learn more about Mabel Lee is Dr. Cathleen Cahill, Associate Professor of History at Pennsylvania State University and author of the 2020 book Recasting the Vote: How Women of Color Transformed the Suffrage Movement.
Wednesday, December 1, 2021
It continues to be frustrating to see inaccurate statements and polemics on the history of abortion in America. Even more frustrating when those voices are elevated to legitimacy as alleged balanced discussions of the issue.
The leading book on 19th century history of the laws and legal regulation of abortion is James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979).
For more modern legal history, the leading book on post-Roe legal history is Mary Ziegler, Abortion Law in America: Roe v. Wade to the Present. For the time just before Roe, one of the best sources is the edited collection by Linda Greenhouse and Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before Roe (2010).
I have written on the topic of the long history of abortion in the 19th century, particularly on the improper attribution of anti-abortion views to the feminist foremothers like Elizabeth Cady Stanton and Susan B. Anthony:
Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012)
Over the past twenty years, prolife advocates have sought to control the political narrative of abortion by misappropriating women’s history. Conservatives, led by the group Feminists for Life (FFL), have used historical feminist icons to support their antiabortion advocacy. Federal antiabortion legislation has been named after feminist heroines. Amicus briefs to the U.S. Supreme Court quote women’s rights leaders in support of abortion regulation. And political forums for college students popularize the notion that feminists historically opposed abortion. Prolife groups claim that “[w]ithout known exception, the early American feminists condemned abortion in the strongest possible terms.” This political narrative, however, misconstrues the historical evidence. It invents rather than describes history, blatantly ignoring the text, context, and spirit of the work of the women it appropriates. Such misuse of history diminishes, rather than enhances, the credibility of this antiabortion advocacy.
The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. The use of feminist leaders suggests that women themselves, even radical feminist women like Elizabeth Cady Stanton and Susan B. Anthony, have traditionally opposed abortion. If these feminist leaders indeed opposed abortion, the historical story would seem to bolster the claim that abortion is not in the best interests of women.
The need to create a history of antiabortion feminists seems important today because abortion has come to be equated with women’s rights. Since the second wave of the women’s liberation movement in the late 1960s, feminists have identified abortion as a foundational right for women upon which all other economic and educational rights rest. The appeal to feminist history by prolife advocates offers a counter-narrative in which women dedicated to improving the economic and educational rights of women reject abortion as a gender-based right. This story of women leaders opposing abortion is thus aimed at undermining the prevailing feminist and legal view that a woman’s right to bodily autonomy and reproductive choice is a privacy right of constitutional dimension going to the heart of gender equality.
The lack of popular knowledge about the lives and work of women’s rights leaders facilitates the co-opting of the historical feminist narrative by antiabortion activists. Most people, politicians, and policymakers lack a familiarity with these women’s lives or their work, much less the details of their philosophies and speeches. It is therefore easy to make the claim that a feminist leader had a particular belief because few are able to challenge it. Despite the ease and utility of creating a feminist history against abortion, the narrative is simply not true. Sound bites that have been excised from history are taken out of context to convey a meaning not originally intended.
Tracy Thomas, Chapter 4 "The 'Incidental Relation' of Mother" and Chapter 6, "Conclusion," in Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016).
Tracy Thomas, interview in The Atlantic, The Epic Political Battle Over the Legacy of the Suffragettes (June 2019)
Tracy Thomas, National Constitutional Center Podcast, The Constitutional Legacy of Seneca Falls (July 25, 2019)
Tracy Thomas, in Lily, Was Susan B. Anthony Antiabortion? (Aug. 3, 2020)
See also Faye Dudden, Women's Rights Advocates and Abortion Laws, 31 Journal of Women's History 102 (2019)
Tuesday, November 23, 2021
By: Maayan Sudai
Forthcoming in: Law and Social Inquiry
Prior to the modern understanding of sex as fundamentally biological, a person’s sex status—that is, whether they were male or female—was largely a legal issue. How was this legal fact established in cases of doubt? To answer that question, this article tells the story of the regulation of cases of doubtful sex (the cases of people who were then referred to as hermaphrodites) between 1629 and 1787 in England and Colonial America. Trials of doubtful sex from this period show that, rather than being based on a single piece of evidence (such as genital appearance), determining a person’s sex required a rich and context-sensitive evaluation by witnesses and juries. However, toward the end of the eighteenth century, scientific and medical authorities gradually sought to classify hermaphrodites according to their “true sex” and to remove any doubt from that classification. Ultimately, this article demonstrates that the early modern common law tradition did not conceptualize sex as purely binary and did not hinge on medical opinions throughout most of the eighteenth century. These findings highlight the continuous engagement of courts in actively shaping the meaning and ontology of sex rather than merely reflecting it in their decisions.
Wednesday, November 17, 2021
David Gans, No, Really, the Right to an Abortion is Supported by the Text and History of the Constitution, The Atlantic
An originalist reading of the text and history of the Fourteenth Amendment, in fact, provides a strong basis for protecting unenumerated fundamental rights, including rights to bodily integrity, establishing a family, and reproductive liberty. The right to abortion flows logically from there. The Supreme Court should recognize this when it decides this term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization.
It is of course true that the debates over the Fourteenth Amendment do not explicitly mention abortion. But there is no daylight between the rights specifically affirmed in the debates and the right to abortion.
The rights to control one’s body, establish a family, and have children necessarily safeguard the right to abortion as a fundamental right. The right of “having a family, a wife, children, home,” as Senator Jacob Howard, who played a central role in drafting the Fourteenth Amendment, put it, guarantees to the individual free choice in matters of family and childbirth, in the same way that the freedom of speech also includes the right to not speak. The right to bear and raise children and the right to abortion are two sides of the same coin—both integral parts of reproductive freedom. In our constitutional heritage, laws that prohibit abortion and those that compel abortion are equally offensive to bodily integrity, autonomy, and equal dignity.***
To understand why the Fourteenth Amendment’s protections are so sweeping and phrased in general terms, remember that the amendment was a response to slavery. Its framers sought to safeguard fundamental rights that have no explicit textual basis in the Bill of Rights but that are crucial to equality and liberty. To ensure true freedom and redress the subjugation of Black bodies during slavery required, at a minimum, asserting control over one’s body as a basic right. During the debates, members of Congress insisted that a person’s “uninterrupted enjoyment of his life, his limbs, his body, his health” was a bedrock right guaranteed to all. Without bodily integrity, the Fourteenth Amendment’s promise of equal citizenship would be illusory.
Protecting people’s reproductive liberty was very much a part of that effort to define what it means to not be enslaved—to be free. One of slavery’s cruelest aspects was the brutal denial of reproductive autonomy in matters of family life. Plantation owners forced enslaved women to bear children who would be born into bondage. Rape and other forms of coerced procreation enabled the growth of the institution of slavery, even after the international slave trade was outlawed in 1808. “Slavery is terrible for men,” wrote Harriet Jacobs in the 1861 narrative of her enslavement, “but it is far more terrible for women.” Jacobs’s autobiography, as the intellectual Henry Louis Gates has observed, demonstrated how enslaved women were treated as “object[s] to be raped, bred, or abused.” Not only were enslaved people coerced into bearing children; enslaved people in loving relationships had no right to marry or raise children of their own. ***
The framers of the Fourteenth Amendment recoiled at the treatment of enslaved families and wrote the amendment to provide broad protection for what might be called rights of heart and home: the right to marry a loved one, to establish a family, to decide whether to bear and raise children. As the debates in the 39th Congress reflect, true freedom would be impossible without securing those freed from enslavement the right “to be protected in their homes and families,” as Senator John Sherman said. Because reproductive freedom and family life were impossible “where the wife is the property of the husband’s master and may be used at will” and where “children are bred, like stock, for sale,” Representative Thomas Eliot argued, “no act of ours can fitly enforce their freedom that does not contemplate for them the security of home.” The denial of these basic rights under slavery provided an invaluable lesson about the meaning of freedom: Decisions about marriage, family, and reproduction had to be left to the individual, not coerced by the government or subject to the brutal domination of another.
During the debates in the 39th Congress, Senator Howard eloquently spoke to how enslaved people had been robbed of their dignity and stripped of their rights to marry a loved one, start a family according to their desires, and enjoy reproductive freedom.
Tuesday, November 16, 2021
Excerpted from Believing: Our Thirty-Year Journey to End Gender Violence by Anita Hill, published by Viking, an imprint of Penguin Publishing Group, a division of Penguin Random House, LLC. Copyright © 2021 by Anita Hill.
“Not that bad” reflects the attitude that survivors often internalize; that our abusers’ behaviors “were not the worst thing that ever happened to us” serves as a coping mechanism that is problematic. In her anthology Not That Bad: Dispatches from Rape Culture, the writer, public intellectual, and cultural critic Roxane Gay writes with painful eloquence about how for a long time she minimized the gang rape she survived as a teenager. And the heartrending stories in her book from other women who experienced gender‑based violence include scores who remained friendly or intimate with harassers and abusers. Not That Bad poignantly reminds us of the way we deny our pain to keep living. Convincing herself that her experience was not as bad as others’ was Gay’s way of managing her trauma “instead of allowing the magnitude of it to destroy” her. But as Gay points out, this defense mechanism comes at a cost. In her case, as with countless other victims, it numbed her to the pain of her other bad experiences, as well as the trauma others suffered. “The surface of my empathy became callous,” she writes.
Looking back at how the Senate exchange went, I wonder, was Specter gaslighting me and the public, or was he mansplaining? I’ve concluded that he was doing both. If gaslighting was his intent, he was manipulating me (and the public) into questioning the reality and my perception of my own experiences. Given his condescending tone, Specter was also mansplaining—trying to convince us all that he knows better than me how a woman experiences sexual harassment. Mansplaining was the technique, and gaslighting was the goal. Both are forms of denial employed to discount claims of abuse, and they deserve to be called out because they prevent women from being heard and believed when they testify about abuse. Both tactics foster self‑doubt, coaxing victims into thinking that coming forward is pointless, that no one will care.
. . .
How do three simple words, “not that bad,” become so powerful? They gain steam when they are absorbed in all of our social systems, permeating survivors’ minds. The hold that those three little words have comes from hearing them repeated multiple times over the course of a lifetime. The exact language may change, as do the circumstances, but the message that your hurt is of no consequence, so back off, remains the same. Schools deny and neglect gender violence, undermining survivors’ confidence and secure identity even as small children. The same attitude exists in the workplace, which can lead survivors to feel self‑doubt. Individual denial breeds institutional denial, and survivors pay the price. Specter’s words were aimed at persuading me to doubt my significance. His strategy was to convince other potential witnesses and the American public that the stories survivors seek to share and the people who want to hear them are of no importance. Specter’s belittlement of my pain had one clear beneficiary, Clarence Thomas. To abusers, harassers, and rapists, “not so bad” is an absolution and, in Thomas’s case, an assurance that the Senate confirmation process would protect him. To survivors, these words are like a dagger.
Wednesday, November 10, 2021
Nan Hunter, In Search of Equality for Women: From Suffrage to Civil Rights, 59 Duquesne L.Rev. 125 (2021)
This article analyzes women’s rights advocacy and its impact on the meanings of gender equality during the period from the achievement of suffrage in 1920 until the 1964 Civil Rights Act. It teaches that one cannot separate the conceptualization of equality or the jurisprudential philosophy underlying it from the dynamics and characteristics of the social movements that actively give it life. Social movements identify the institutions and practices that will be challenged, decisions that in turn determine which doctrinal issues will provide the raw material for jurisgenerative change. Without understanding a movement’s strategy and opportunities for action, one cannot know why law developed as it did.
The article also demonstrates that this phase of women’s rights advocacy comprised not one movement – as it is usually described – but three: the suffragists who turned to a campaign for an Equal Rights Amendment after winning the Nineteenth Amendment; the organizations inside and outside the labor movement that prioritized the wellbeing of women workers in the industrial economy; and the birth control movement. Each was dominated by white women, but Black women worked in and through all three branches, in addition to developing distinctive organizations. Women engaged with courts, legislatures and other lawmakers, using a variety of methods and a mixture of complementary and contradictory arguments in an effort to secure full citizenship status for women in the political, economic and family realms.
Different approaches to equality, however, created a significant movement disability. Prioritizing the ERA cemented that branch’s allegiance to what would now be called formal equality, the principle that men and women should be held to the same rights and duties under law. This absolute equality stance precluded support for laws setting protective working standards only for women, the paramount goal of those most concerned with women working in factories. ERA advocates saw protective laws as Trojan horses that promised minimum wages and a cap on hours but also disqualified women from some of the highest-paying jobs. Labor activists saw the disabilities associated with women’s political and family status as problematic, but secondary to economic issues. Birth control advocates developed arguments that sidestepped the frame of equality altogether.
The absence of a united position on the scope of gender equality under the law facilitated the silence of the Supreme Court, which perpetuated a discourse of domesticity with respect to the legal status of women that began before suffrage and continued long after. The gap in constitutional law as to gender not only stymied doctrinal development, but also deprived women’s rights advocates of the cultural power that attaches to an overarching equality narrative. Yet although the discourse of law drove the branches of women’s rights advocacy apart, it also provided a venue in which equality had to be, and ultimately could be, defined, at least for regulatory purposes.
Somewhat surprisingly, it was the labor-oriented portion of the movement that brought the kind of statutory anti-discrimination model that we know today as “civil rights” into women’s rights advocacy. Demands for equal pay combined the no-differential-treatment approach of the ERA wing with the workplace-only focus of the labor movement. This linkage brought the women workers groups substantively closer to the anti-classification position associated with the equality/sameness understanding advocated by supporters of the ERA.
The institutional mechanism that led to the embedding of this model in federal law was the 1961-1963 President’s Commission on the Status of Women. The Commission produced a report that appeared to be destined for the shelves of bureaucracy. In its work on developing the report, however, the Commission served the function of aggregating and integrating women’s rights advocacy across all three movement branches and prepared the way for the successful fight to include sex discrimination within the parameters of Title VII of the 1964 Civil Rights Act.
The conventional understanding that feminism was dormant between adoption of the Nineteenth Amendment and the eruption of rights claims in the 1960’s is wrong. Examining the campaigns for legal change across the branches of the movement during this time reveal an increase, not a diminution, in demands for full and equal citizenship in multiple arenas. What was dormant was the development of the concept of gender equality in constitutional law, but that was not for lack of activity by women on the ground
Monday, November 8, 2021
Susan S. Lee & Aurora J. Grutman have published a new article Seeking Justice for Victims of the Guatemalan Sexually Transmitted Disease Experiments 1946-1948 in Volume 39 of the Columbia Journal of Gender and Law. The abstract states that:
Between 1946 and 1948, researchers sponsored by the United States government intentionally exposed more than 1,300 Guatemalan men and women to sexually transmitted diseases without their informed consent. Many of the surviving victims and their descendants suffer from the effects of untreated syphilis, gonorrhea, and similar illnesses. But the general public did not become aware of these non-consensual human experiments for more than sixty years. After a researcher uncovered the experiments, the United States government apologized to the Guatemalan victims, but the victims received no compensation for their injuries. So far, the efforts of the victims to receive legal redress for their injuries have been unsuccessful.This Article has two aims—one descriptive and the other conceptual. First, it seeks to bring awareness to the history and legacy of the Guatemalan sexually transmitted disease experiments. Second, it argues that litigation—even if unsuccessful—can play a role in amplifying the victims’ voices in a way that acknowledges their pain and helps to repair harm that was done. Even if the United States government is immune from formal legal liability, the government and the corporate interests that benefitted from the Guatemalan experiments, have a moral obligation to compensate the victims. The lens of reproductive justice makes clear this obligation. By critically investigating the Guatemalan sexually transmitted disease experiments and their legacy, one can better understand how gender, race, socioeconomic class, geopolitical power, and even geography informed the initial decision to conduct non-consensual human experimentation in that country and why the victims have been unable to obtain formal legal recognition for their suffering.
Megan Ming Francis and Leah Wright-Rigueur have published their article Black Lives Matter in Historical Perspective in volume 17 of the Annual Review of Law and Social Science. The abstract summarizes:
This article situates Black Lives Matter in a much longer lens and examines the long struggle to protect Black lives from state-sanctioned violence. We draw from existing research to provide a historical genealogy of the movement that traces the beginnings of a movement to protect Black lives to the work of Ida B. Wells and follows it up to the work of the Mississippi Freedom Democratic Party and the urban rebellions that have followed.
Particularly regarding the activist work of Ida B. Wells, the authors describe these historical connections to the modern BLM movement (citations omitted).
Wells was the first person to risk her life, time after time, while conducting dangerous lynching investigations. Wells’s work highlights the importance of the process of knowledge production--the need for Black freedom fighters to collect data and write their own stories. She did not rely on the white press to get important stories out. Wells ardently believed that data collection and the keeping of records of Black death were central to holding the state accountable.
How is the information (quantitative and qualitative) produced and disseminated of which movements stake a claim against the state? This tradition of record keeping has been resurrected in the present movement. Before the BLM movement began, there was no comprehensive record of the number of people killed by police. In response, national and international news organizations began to collect data in 2014: The Guardian in the United Kingdom produced “The Counted,” and the Washington Post produced its own database of people who have been fatally shot by on-duty police, called “Fatal Force.” Meanwhile, Mapping Police Violence, a Black-led nonprofit organization, began collecting its own data. Its database is the most comprehensive and includes cases in which individuals were killed through use of chokehold, taser, or other means. The results from all three databases have been instrumental in raising public awareness about the problem of police violence.
When Wells began her activism, the protection of Black lives from lynching and mob violence was not considered a central mobilizing issue for Black people. Wells’s investigations and writings about lynchings dramatically shifted the frame of how to understand the violent spectacle. Wells named the unjust violence and called it out for being a tool of white supremacy--thereby providing the political language for Black people to articulate the harm they endured and the government’s responsibility to remedy it. Finally, it is Wells who effectively situated lynching at the crux of American democracy: To protect the voting, education, and workplace rights of African Americans, the senseless killings of African Americans had to stop.
Tuesday, October 26, 2021
By: Christopher R. Leslie
Published in: Duke Law Journal, Vol. 71, No. 1, 2021
In Bostock v. Clayton County (2020), the Supreme Court held that Title VII’s prohibition on sex-based employment discrimination applies to discrimination based on sexual orientation and gender identity. Although the opinion is an important victory, if history is any guide, Bostock was only one battle in a larger war against invidious workplace discrimination based on sexual orientation and gender identity. The Bostock opinion will do little to quench the urge of prejudiced employers and managers to discriminate. These employers will seek alternative, less obvious ways to discriminate. Judges and civil rights lawyers must prepare themselves to recognize and reject pretextual rationales for adverse actions taken against LGBT employees. A better understanding of history can inform those efforts.
This Article is the first scholarship to examine an unexplored chapter in America’s history of anti-gay discrimination in the workplace: punishing gay workers for concealing their sexual orientation. Beginning in the 1960s, as federal and state law implemented procedural protections for public-sector workers, employers developed a new mechanism to evade those protections: the gay perjury trap. At its core, the strategy is simple. An employer asks job applicants about their sexual orientation. If they reveal that they are gay, decline to hire them. If gay workers conceal their sexual orientation and it is later discovered, terminate them for their dishonesty. Either way, gay workers are purged from the workforce.
The Article begins by describing the gay perjury trap, providing historical examples of the federal government and local school districts using this strategy to terminate high-performing workers who were later discovered to be gay. After discussing the inherent unfairness of the gay perjury trap, the Article then explains how prejudiced employers may attempt to deploy this strategy as a means of circumventing Title VII liability in the post-Bostock era.
Finally, the Article discusses how courts should prevent employers from using the gay perjury trap in the post-Bostock work environment. Dismantling the gay perjury trap should entail three components. First, courts should interpret Title VII as prohibiting employers from inquiring about an applicant’s or employee’s sexual orientation. Second, courts should not afford employers a general right to penalize gay workers for concealing or misrepresenting their sexual orientation. Third, courts should construe Title VII to protect employees who refuse to answer questions about their sexual orientation.
Whether Title VII can effectively deter and remedy anti-gay discrimination will in significant part depend on our courts’ ability to recognize and prohibit employers from using the gay perjury trap. The post-Bostock Title VII cannot succeed if employers can use alleged dishonesty about sexual orientation as a means of punishing gay workers and of avoiding Title VII liability.
Thursday, October 21, 2021
Relying on extensive historical research, this Article is the first to examine how women advocated for the legal right to hold public office in state-level litigation, constitutional amendments, legislative lobbying, and other venues for more than a century. From the 1840s through the 1940s, women in many states were excluded from holding even mundane public offices because of state constitutional language and judicial holdings. Opponents of women’s officeholding feared that permitting women to hold posts would deprive men of their rightful opportunities, radically alter gender norms, and fuel the flames of the women’s suffrage movement. The nation’s first women lawyers were particularly active in challenging these restrictions, with results varying by region and reflecting distinct legal, political, and social cultures. Women in the West obtained public offices relatively early, in part because they were the first to secure suffrage. Women in the Northeast and South faced the most difficult hurdles because conservative state judiciaries construed constitutional silences as implying women’s exclusion from office. The Midwest emerged as the contested middle ground; although women could not vote in Midwestern states for most of the studied period, many courts nevertheless held that they were entitled to hold both appointed and elected offices.
Recovering the history of women’s legal right to hold public office challenges three major conventional wisdoms. First, it undermines the commonplace claim in scholarship on women’s legal and political history that officeholding was not a meaningful part of women’s advocacy or experiences until after ratification of the Nineteenth Amendment in 1920. This account instead shows that proponents of women’s rights have long demanded women’s access to public posts, and women held positions more than a half century prior to the federal suffrage amendment. Second, this Article challenges prominent scholarship—mostly focused on interpreting the Reconstruction Amendments—that treats officeholding as an obvious or inevitable twin to suffrage. Foregrounding women’s history and state-level advocacy emphasizes the legal possibility and practical reality of severing these political rights. Third, and relatedly, the Article calls for more attention to state constitutional law and regional variation. The women’s officeholding story clearly demonstrates how focusing on one geographical area, providing a single national account, or limiting analysis to the federal level obscures essential developments in securing rights.
Wednesday, October 13, 2021
Ann Tweedy, Book Review, Uncovering the Little-Known History of Suffragists of Color, JOTWELL, reviewing Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement (2020).
The book rightfully complicates the notion of women’s suffrage, revealing that a singular focus on women’s suffrage both obscures the larger struggles that these women were engaged in to secure the voting rights of all members of their communities and elides the contributions of these women to the suffrage movement. As Cahill explains, “[t]he suffrage histories of women of color bridge 1920, so to see that year as an end point leads us to tell a story that inevitably ignores them and truncates our understanding.” (P. 205.) Another invaluable aspect of this book is that Cahill refuses to shy away from the complexities of the important history she is unveiling. Thus, as readers, we are forced to reckon with the fact Native and Latina activists, for instance, sometimes drew distinctions between themselves and African-Americans to demonstrate the worthiness of their own communities for voting rights. More broadly, we are faced with the shameful history of exclusion within the women’s suffrage movement. White suffrage parade organizers, for instance, tried to relegate Ida B. Wells (then going by Mrs. Wells-Barnett) to the portion of the 1913 Washington D.C. suffrage parade reserved for African-Americans, rather than allowing her to march with the Illinois delegation as planned. As a consequence, she had to jump into the parade after it had already started in order to march with her fellow Illinois citizens. (P. 104.)
It is tempting to the think of the history of voting rights, like other histories, in linear terms, with African-American males getting the vote in 1870 upon the ratification of the Fifteenth Amendment; white, African-American, and Latina women receiving the right to vote in 1919 with the ratification of the Nineteenth Amendment; and Native American men and women securing the right to vote via statute in 1924 (although many Native persons had obtained the right to vote prior to that).
Recasting the Vote shows that this progression was nowhere near so simple. Cahill, for example, reminds us that, post-1920, widespread lynching of African-Americans continued to be utilized to dissuade African-Americans from voting and that, as a consequence, activists like Carrie Williams Clifford organized campaigns for anti-lynching legislation. (P. 226.) Racist whites also prevented Native Americans from voting even after the Indian Citizenship Act was passed, with “States with large Native populations borrow[ing] heavily from . . . southern examples while also using Native people’s unique relationship to the federal government to keep them from voting.” (P. 261.) And although activists like Mabel Ping-Hua Lee fought for women’s suffrage in the United States, under the Chinese Exclusion Act, “the Chinese were the only people in the world whom the United States restricted due to their nationality and made ineligible for naturalized citizenship.” (P. 149.) Thus, until the repeal of the Chinese Exclusion Act in 1943, Chinese-born women could not become naturalized citizens and could not vote irrespective of the Nineteenth Amendment.
Cahill thus renders her history of suffragists of color in all of its undeniable complexity. As such, Recasting the Vote is bound to be an indispensable resource on the subject for decades to come.
Wednesday, October 6, 2021
In a June hearing, Spears said that her conservatorship was “abusive,” and that her father forced her to work and to keep a birth-control device in her body so that she could not become pregnant. The claims shocked the public, including many celebrities, who have increasingly voiced their support for her.
But to historians of eugenics, Spears’s ordeal sounds very familiar. It’s a story of control — control of a woman’s labor, civil rights, parental custody, legal representation and even her reproductive system.***
In the early 20th century, a lot of states were “chasing the white whale” of a eugenics law that would pass constitutional scrutiny, said Elizabeth Catte, a public historian and author of the scorching book “Pure America: Eugenics and the Making of Modern Virginia.” Indiana passed a eugenics-based law allowing forced sterilization in 1907, but it was overturned in court, as was California’s in 1909.
Then Virginia gave it a try with its own law in 1924, and went looking for a test case to legitimize it.
Carrie Buck was born into poverty in Charlottesville in 1906. Her father abandoned the family, and her mother was soon accused of “immorality” and committed to the Virginia State Colony for Epileptics and Feebleminded — essentially a work camp for White people the state didn’t like. Buck was separated from her siblings and sent to live with a wealthy foster family, who forced her to leave school during sixth grade and serve as a housekeeper in their home.
When Buck was 17, she was raped by the nephew of her foster mother and became pregnant. Probably to save face, the family accused her of promiscuity and feeblemindedness, and in 1924, she was committed to the same colony as her mother. Her infant daughter was given to her foster mother.
In an 8-to-1 decision, the Supreme Court agreed, with Justice Oliver Wendell Holmes famously declaring, “Three generations of imbeciles are enough.” (Many words now used as mild insults, such as “moron,” “imbecile,” and “idiot,” have a long history of being used as clinical diagnoses.)
Buck, along with her mother and her sister, was subsequently sterilized by having her fallopian tubes cut and cauterized. Buck’s daughter died when she was 8.
All told, Virginia robbed 8,000 people of their ability to have children.
Spears’s situation has made Catte “think a lot about women that I write about, even though they are incredibly poor women,” and Spears is not.“The choice to deprive them of their reproductive freedom through sterilization was only one half of the state’s control over their lives,” she said. “The second half is control over their labor.”
Wednesday, September 22, 2021
Many of us have seen the iconic photo of interracial sisterhood with Gloria Steinem and Dorothy Pitman Hughes from 1971, now part of the Smithsonian Institution’s National Portrait Gallery in Washington, D.C. While we know a lot about Steinem from popular media, history books, autobiographies and even a Broadway play, most of us know very little about Pitman Hughes. But we should.
The recent publication of Pitman Hughes’s biography—With Her First Raised: Dorothy Pitman Hughes and the Transformative Power of Black Community Activism—by University of Massachusetts historian Laura Lovett shares this forgotten history. According to Lovett, her book offers “a history of the women’s movement with children, race and welfare rights at its core, a history of women’s politics grounded in community organizing and African American economic development.”...
Throughout her life, Pitman Hughes sought to make the lives of ordinary women better by working to empower communities to meet their needs—whether that was child care, recognition of Black women’s inherent beauty or access to economic resources or local healthy food. The book recounts her early experiences of racism, including “routine extralegal violence from the Ku Klux Klan and the White Citizens’ Councils,” her work with the Congress on Racial Equality (CORE), the Black Panthers and Malcolm X, and her friendships with people like Flo Kennedy and Ti-Grace Atkinson, as well as Steinem....
“Dorothy’s style was to call out the racism she saw in the white women’s movement. She frequently took to the stage to articulate the way in which white women’s privilege oppressed Black women but also offered her friendship with Gloria as proof this obstacle could be overcome,” said Lovett.
Pitman Hughes also organized the first shelter for battered women in New York City, co-founded the New York City Agency for Child Development working to expand child care services in the city and was a co-founder of the National Black Feminist Organization.
Monday, September 20, 2021
The Kentucky Court of Appeals published an interesting decision of note on September 3 in Bratcher v. State Farm Fire and Casualty Co., et. al. The plaintiff was injured in a motorcycle accident and filed a claim for benefits under her parents' policy listed as "Bratcher, Don & Tina." The plaintiff lived in her parents' rental property. The plaintiff's mother had separated from her father and moved into the rental property with the plaintiff just before the accident. The insurance coverage would include the plaintiff only if she was a "resident relative" defined as a person who lives "primarily with the first person shown as a named insured on the Declarations Page and who is [related to that "person"]" (emphasis in original). Person is defined as "a human being." State Farm moved for summary judgment arguing that she did not reside primarily with the person on the Declarations Page because that was only her father. The Circuit Court agreed. The plaintiff argued on appeal that the parties were listed together as husband and wife and held equal status as named insureds. The Court of Appeals agreed and held that both mom and dad were first-named insureds on the policy. Because Mom had just moved in with the plaintiff, there was a genuine issue of material fact as to whether the plaintiff was a resident relative, so the case was remanded for proceedings consistent with the decision.
Judge Dixon's Concurring Opinion is particularly interesting in how it draws out the historical points on coverture (emphasis in original).
It is within this context of history I turn to State Farm’s denotation of Don as the first-named insured. While much has changed in the past 50 years, apparently much stays the same.
The law governing family relationships has developed significantly during the latter half of the 20th Century; married women are generally accorded the same rights as unmarried women, and strides toward recognizing the equality of women and men have been made and are continuing. Nevertheless, there remain vestiges of the historical treatment of women generally, and married women in particular, within our law, a treatment which at common law merged the married woman’s identity into that of her husband. 5 WILLISTON ON CONTRACTS § 11:1 (4th ed. 2021). Has Tina’s identity herein been merged with that of her husband? The uncontested proof indicates Appellant’s mother, Tina, purchased these insurance policies and paid the premiums for them. Under normal contractual circumstances, Tina would be considered the owner of the policies. Yet, State Farm representatives unilaterally chose to list the “insured” as “Bratcher, Don & Tina L,” conducting a credit check only on Don. Why not Tina? Is her credit irrelevant and insignificant? In fact, Tina was the only one between the two with actual employment. Does she have no independent identity? Nevertheless, due to the most random of circumstances, State Farm contends that because Tina, not Don, resided with Appellant in a home owned jointly by Tina and Don, their daughter–Appellant–is excluded from coverage solely because Don is the first-named insured. Thus, presumably, if Don were residing with Appellant instead of Tina, she would be covered by the policies in question. Such certainly smacks of the sex discrimination of a bygone era. Why else would State Farm choose a man as first-named insured over his wife who actually purchased the insurance policies herein and who paid all of the premiums for the policies? State Farm should not be allowed to benefit from such action.