Gender and the Law Prof Blog

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

Wednesday, January 22, 2020

The Historical and Legal Significance of Virginia's Recent Ratification of the Equal Rights Amendment

In this interview, I offer my thoughts on the history and future of the ERA.

Wisconsin NPR, Central Time, Virginia Just Ratified The Equal Rights Amendment: What Does That Mean?nt-what-does-mean

Virginia’s General Assembly passed the Equal Rights Amendment recently, becoming the 38th state to do so, nearly four decades after a controversial deadline passed. A legal scholar shares the history of the ERA, what the Virginia vote means and where the effort goes from here.

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January 22, 2020 in Constitutional, Gender, Legal History, Legislation | Permalink | Comments (0)

The Arguments as to Why the ERA Can Still be Ratified Now–After the Deadline

History of ERA Passage

The Equal Rights Amendment (ERA) was passed by Congress in 1972. The original Amendment contained a 7-year deadline in the preamble to the resolution reaching to 1979.  Congress extended the deadline to 1982.  President Carter signed the extension as a symbolic gesture, as the Constitution gives the President no formal role in amending the Constitution. The Office of Legal Counsel at the time opined that Congress had the power to grant the extension as a procedural move by majority vote.  See Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment (Oct. 31, 1977). 

Only 32 states ratified the ERA by 1982—3 states shy of the 38 required by the Constitution of ¾ of the states.  Momentum from the Women’s Marches, #MeToo movement, and the 2016 Presidential election triggered renewed interest in an equal rights amendment.  Nevada then ratified the ERA in 2017, Illinois in 2018, and Virginia in 2020, thus now reaching the 38 states.  Five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) attempted to rescind their ratification in the late 1970s.

Current Challenges to ERA Ratification

In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted.  Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019).  They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.

The National Archivist sought an opinion from the Office of Legal Counsel as to the status of the ERA.  Office of Legal Counsel, Memorandum, Ratification of the Equal Rights Amendment (Jan. 2020)  The OLC opinion issued in January 2020 advised that Congress did not have the authority to modify the original deadline, disagreed with the prior 1977 OLC opinion supporting extension, and declined to issue an opinion on rescission.

Arguments in Support of Ratification Today

So what do proponents of ERA say?  There are good arguments that the ERA remains open for ratification now, despite the past deadlines, and does not require a complete restart of the amendment and ratification process.  

1.  The original deadline is not mandatory.

        a.      Deadlines are not required for constitutional amendments.  The first 17 amendments did not have a deadline.

        b.      The deadline is contained in the preamble to the resolution, and not the text of the amendment itself, and therefore   is not binding as part of the ratification.

        c.    The Supreme Court’s decision in Dillon v. Gloss, 256 U.S. 368 (1921) upholding Congress’s power to attach deadlines to constitutional amendments, is incorrect.  In Dillon, the Court addressed a challenge to the deadline added for the first time for the Eighteenth Amendment for prohibition.

                i.  The textual basis for the Court’s holding stemming from Article V of the Constitution is incorrect.  Congress’s power to determine the “mode of resolution” means only that Congress can decide whether to amend the Constitution by Congressional proposal or state legislative convention. 

                ii.  Dillon’s conclusion that amendments implicitly require “contemporaneity” was disproven by the 27th Amendment which passed in 1992 after pending for over 200 years.  The 27th Amendment prohibits Congress from voting itself pay raises, requiring an intervening election before such raises take effect.  It was originally proposed in 1789 as the Second Amendment.  While the 27th Amendment did not include an express deadline, its long open ratification period contradicts the Supreme Court’s holding that all amendments must be passed in relatively short time period.

2.  Congress has the power to modify the deadline

        a.     The deadline is merely a procedural adjunct to the amendment, which Congress can modify, extend, or nullify.  As a procedural matter, only a majority of the congressional houses is required.

        b.      The 1977 OLC decision concluded that Congress has the power to extend and thus alter initial deadlines.

        c.      The Supreme Court held in Coleman v. Miller, 307 U.S. 433 (1939), that in the absence of a deadline, Congress may determine after receiving 38 ratifications whether too much time has passed.  In Coleman, the Child Labor Amendment was pending for thirteen years.  It did not include a deadline. The Supreme Court held that Congress had the authority to determine matters of time and expiration, after ratification by 38 states. 

        d.     Coleman also held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts.

Rescinded Ratifications

If the deadline does not apply, then the question is whether states can rescind their past ratification.  The precedent of the Fourteenth Amendment suggests no.  Several states which had ratified the 14th Amendment attempted to rescind their vote. The National Archivist and Congress refused to accept the rescissions, essentially finding them to be irrevocable. 

In the context of the ERA, a federal district court in Idaho concluded that states could rescind their votes.  Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981); but see John Carol Constitutional Amendment: Idaho v. Freeman, 16 Akron Law Rev. 151 (1983) (arguing Freeman was wrongly decided).  The decision was appealed, and granted cert by the Supreme Court, but was dismissed as moot after expiration of the 1982 deadline.

January 22, 2020 in Constitutional, Gender, Legal History, Legislation, SCOTUS | Permalink | Comments (0)

Monday, January 13, 2020

The Use of Agency Law for Married Women's Business Rights in Historic Nantucket

Mary L. Heen, Agency: Married Women Traders of Nantucket, 1765-1865, 21 Georgetown J. Gender & Law (2019)  


Before the enactment of separate property and contract rights for married women, generations of married women in seaport cities and towns conducted business as merchants, traders and shopkeepers. The first part of this article shows how private law facilitated their business activities through traditional agency law, the use of powers of attorney, trade accounts and family business networks. These arrangements, largely hidden from public view in family papers, letters, and diaries, permitted married women to enter into contracts, to buy and sell property, and to appear in court. Private law, like equity, thus provided a more flexible alternative to the common law of coverture under agreements made within the family itself. On the other hand, public law proved much more restrictive for wives who were not part of a viable or harmonious marriage. In post-revolutionary Massachusetts, for example, the feme sole trader statute and various judicially adopted exceptions to coverture applied only to certain wives abandoned by their husbands.

The second part of the article provides a case study of three generations of married women traders from Nantucket during the whaling era, the oil exploration business of its time. Their stories show how some married women, within the constraints of the law as it developed in Massachusetts without courts of equity, attained a form of autonomy in business or commercial activity at the same time that they fulfilled their family responsibilities. Their stories also uncover tensions underlying the first wave of women’s rights reform efforts in the mid-nineteenth century, including the developing separation between work and home that continues to pose challenges for family law and for men and women today. In a broader sense, this historical study also illuminates the interaction among private law, public law, and evolving social practice as the law both reinforced and shaped family roles during a period of increased commercialization and industrialization.

January 13, 2020 in Business, Family, Legal History | Permalink | Comments (0)

Monday, December 9, 2019

Theme for March for Life 2020 Relies on Questionable Women's History, Incorrectly Claiming Early Feminist Leaders as Pro-Life

The old claims that feminist suffrage leaders like Elizabeth Cady Stanton, Susan B. Anthony, and Alice Paul were pro-life, are getting dusted off and used as the basis for pro-life advocacy, seeking a connection to the 2020 centennial of women's suffrage.  One problem, however, is that they are not true. 

March for Life 2020 Theme Pays Tribute to Pro-Life View of Early Feminists

Organizers of the March for Life have chosen "Life Empowers*: Pro-Life Is Pro-Woman" for the 2020 rally and march in Washington.

 

In embracing the theme, Jeanne Mancini, president of the March for Life Education Fund, cited the coming centennial of the 19th Amendment, which gave women the right to vote, and the views of early suffragists, including the best-known figure of the movement, Susan B. Anthony.***

 

Leaders of the suffrage movement, Mancini said, knew that "mothers and babies were not at odds with each other." Citing Alice Paul, leading strategist of the 19th Amendment, Mancini said Paul "referred to abortion as "the ultimate exploitation of women."

 

This was reinforced by another panelist, Serrin Foster, president of Feminists for Life, who said early American feminists condemned abortion "in no uncertain terms."

 

Abortion, Foster said, "was constantly referred to as child murder," and it was a frequently discussed topic in the feminist newspaper edited by Elizabeth Cady Stanton and to Anthony, the best known feminist leader of her age, was a frequent contributor.

 

A page on the website of the Susan B. Anthony House and Museum in Rochester, New York, disputes the notion Anthony can be considered a heroine to the pro-life movement, insisting her writings for the paper, called The Revolution, were mostly appeals to support the publication.

Similar claims have been made by the pro-life movement since the mid-1990s, in prior political campaigns, in college recruitment --  and in amicus briefs to the U.S. Supreme Court.  This is not merely political rhetoric, but is being used as historical evidence to advocate for legal truth in the courts of law. 

I've written extensively to dispute this claim, particularly the claim of pro-life as applied to pioneering feminist leader Elizabeth Cady Stanton.  See Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. J. 1 (2012);  Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, chp. 5 (NYU Press 2016).

As I explained the general context:  

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.

 The evidence alleged of Stanton's position is meager, a handful of quotes, only 2 of which can be attributed to Stanton, and the two do not endorse a pro-life stance.  The other anonymous articles published in Stanton's newspaper were more likely written by, and selected by, the male managing editor of the paper, Parker Pillsbury, a former minister who was on the record as opposing abortion (although against criminalization of it). 

What Stanton did talk about was women's reproductive choice, and voluntary motherhood.  Maternity was woman's sole choice, unrestricted by men or government.  Stanton also took up the public defense of Hester Vaughn, a young woman convicted of infanticide.  Her extensive writings on both these subjects reveal a strong support for women's autonomy and choice in reproduction, a precursor to the modern pro-choice movement.

As to Susan B. Anthony, scholars of her life and work -- eminent historians Ann Gordon, Lynn Sherr, Stacy Schiff, and Christine Stansell, all strongly refuted that Anthony was pro-life, or said much of anything about it at all. These historians concluded that “Anthony spent no time on the politics of abortion. It was of no interest to her despite living in a society (and a family) where women aborted unwanted pregnancies.”

As I concluded: 

It is simply not the case that nineteenth-century feminist leaders expressed explicit and unanimous support for the criminalization of abortion because of the concern of the morality of prenatal life. . . . [T]he few feminist voices joining the periphery of the abortion debate did not support the regulation of abortion. Instead, these writers defended women against the abortion campaign’s attack and shifted the moral blame to men and to society’s oppression of women. What feminists did unanimously endorse was voluntary motherhood and the right of women to control procreation through abstinence. Stanton expanded on this idea, arguing for a woman’s right to be the “sovereign of her own person,” which meant the right to choose when and under what conditions she would become pregnant. Stanton empathized with women who had unwanted pregnancies and argued against a legal system that imposed punishment upon women for infanticide. This advocate of women’s individual right to control makes an unlikely leader for today’s antiabortion movement.

December 9, 2019 in Abortion, Constitutional, Legal History | Permalink | Comments (0)

Wednesday, December 4, 2019

The Racialized and Sexually Exploitive US Citizenship Transmission Laws

Blanche Cook, Johnny Appleseed: Citizenship Transmission Laws and a White Heteropatriarchal Property Right in Philandering, Sexual Exploitation, and Rape (the 'WHP') or Johnny and the WHP, 31 Yale J. Law & Feminism (2019) 

Title 8, United States Code, Section 1409—one of this country’s citizenship transmission laws—creates a white hetero-patriarchal property right in philandering, sexual exploitation, and rape (the “WHP”). Section 1409 governs the transmission of citizenship from United States citizens to their children, where the child is born abroad, outside of marriage, and one parent is a citizen and the other is not. Section 1409, however, draws a distinct gender distinction between women and men: An unwed female American citizen who births a child outside the United States, fathered by a foreign man, automatically transmits citizenship to her child. An unwed male American citizen, by contrast, who fathers a child abroad with a foreign woman has the distinctly male prerogative to either grant or deny citizenship to his foreign-born non-marital child at his leisure.

On the surface, it might appear that § 1409 treats men and women differently because it is easy to determine a child’s mother, as opposed to a child’s father, at birth. In fact, a majority of the Supreme Court has deployed these “natural” differences between men and women to shield § 1409 from three separate gender-based equal protection challenges. Justice Ginsburg, however, has keenly observed, “History reveals what lurks behind § 1409.” What lurks behind § 1409 is a long legacy of white hetero-patriarchy deploying the legal category of citizenship to perfect sovereignty in itself and vulnerability in “foreign” women for the very purpose of sexual domination.

The historical model for this racialized regime of sexual domination is the classic case of Dred Scott, where the denial of citizenship to anyone of African descent further facilitated a white hetero-patriarchal property right in philandering, sexual exploitation, and rape. In Dred Scott, the exclusion of anyone of African descent from person-hood, through the legal mechanism of citizenship, perfected power in white men and vulnerability in racialized others. By excluding anyone of African descent from citizenship, enslaved owners continued to enjoy an unbridled property right in the use and enjoyment of the enslaved. The denial of citizenship to the enslaved facilitated their use as property. Following suit, § 1409 makes citizenship the property of men, through which they can exclude their non-marital foreign-born children from membership in the American polity. Section 1409 vests in these fathers not just a right to exclude their children, but to discard them, leaving them profoundly vulnerable to the sting of “illegitimacy,” ethnic and racial animus, and financial precarity — a form of destruction, while simultaneously empowering these fathers to sexually possess, control, use, and enjoy foreign women. Section 1409 understands all too well: in order to sexually exploit the mother, one must control the status of the child.

December 4, 2019 in Gender, International, Legal History, Race | Permalink | Comments (0)

The Potential Persuasive Influence of the Feminist Judgments Project on Judicial Decision Making

Kate Webber Nunez, Persuasive or Pipe Dream? The Feminist Judgments Project's Potential Influence on Judicial Decision Making, British Journal of American Legal Studies (Vol. 9 2020 Forthcoming)

The Feminist Judgments Project (“FJP” or the “Project”) rewrites existing judicial opinions from a feminist perspective. This article explores whether and how the FJP’s alternative jurisprudence can influence future decisions. The FJP rewrites the law in order to reveal the underlying biases that exist in purportedly neutral decision making. In doing so, the FJP seeks to influence future advocacy and, ultimately, change the law. According to the Project’s commentary, this change will come by revealing unconscious bias and opening judicial minds to previously unknown perspectives; a method that draws on psychological theories of decision making, such as cultural cognition. This article takes a different approach and evaluates the FJP using theories from political science on how judges decide cases. The article’s analysis is relevant because certain prominent theories in the political science field would challenge the utility of the Project. Specifically, given an increasingly conservative judiciary and Republican administration, the attitudinal and strategic theories of decision making would give the FJP little prospect of actually influencing the law. This article explains, however, that the field of political science would not universally nor completely dismiss the Project’s efforts. An alternative line of thought, historical institutionalism, presents a theoretical explanation for why and how the FJP’s re-envisioned law could possibly create persuasive arguments that will influence the judiciary. This article applies historical institutionalist concepts to the FJP, exploring how, and the degree to which, this view of decision making supports the Project’s utility. Ultimately, it concludes that the path of persuasion is somewhat narrow and limited, but possible.

December 4, 2019 in Courts, Legal History, Theory | Permalink | Comments (0)

AALS Programs on the History and Modern Implications of the 19th Amendment

Legal History Section, A Century of Women's Suffrage

2020 marks one hundred years since the Nineteenth Amendment was ratified, ushering in a century of women's suffrage in the United States. This program brings together scholars writing on the history of women's suffrage, including scholars who will explore the suffrage movement that culminated in the Nineteenth Amendment; address how the Nineteenth Amendment affected political parties in the subsequent century; and compare the women's suffrage movement to analogous social movements.

Speaker: Dr. Martha S. Jones, Johns Hopkins University

Speaker from a Call for Papers: Elizabeth D. Katz, Washington University in St. Louis School of Law

Speaker: Holly McCammon, Vanderbilt University Law School

Speaker from a Call for Papers: Kara W. Swanson, Northeastern University School of Law
 
Moderator: Evan C. Zoldan, University of Toledo College of Law
 
 
Women in Legal Education, A Century Since Suffrage: How Did We Get Here? Where Will We Go? How Will We Get There?
This session will explore the legal accomplishments and failures of the women’s movement since 1920. A century ago, women won the right to vote. Since then, women garnered additional rights in virtually every legal area, including in the realms of employment, property, reproduction, education, care taking, sexual freedom, and protection from violence. Despite significant success, much work remains. This session will consider the future of the women’s movement through a critical examination of our past.
Speaker from a Call for Papers: Lolita K. Buckner Inniss, SMU Dedman School of Law
Speaker from a Call for Papers: Nan D. Hunter, Georgetown University Law Center
Speaker from a Call for Papers: Leslie G. Jacobs, University of the Pacific, McGeorge School of Law
Moderator: Rona Kaufman, Duquesne University School of Law
Speaker from a Call for Papers: Diane J. Klein, University of La Verne College of Law
Speaker from a Call for Papers: Danaya C. Wright, University of Florida Fredric G. Levin College of Law
 
 
Constitutional Law Section:. The Constitution and the Modern Right to Vote

In honor of the 100th anniversary of the Nineteenth Amendment and the 150th anniversary of the Fifteenth, the Constitutional Law Section is putting on a joint program with the Section on Election Law (co-sponsored by the Section on Legal History). The program will run from 2 pm – 5 pm on Thursday, January 2nd in Virginia Suite C.

The overall program is described as follows:

While the constitutional amendments related to voting rights have suggested that all citizens ought to be included in the franchise, the modern right to vote has nonetheless been heavily contested. The efforts to meaningfully include all citizens in the franchise in the century after the Nineteenth Amendment (and the 150 years after the Fifteenth Amendment) have been complicated, fraught, and have often diverged from the underlying idea of inclusion. Tensions still exist in modern voting rights law regarding the meaning of the right to vote, as illustrated by the litigation and activism around issues such as partisan and racial gerrymandering, voter identification, and proof of citizenship requirements. These examples reveal the complexities of the project of democratic inclusion, and this panel will explore how those complexities have evolved and are manifest in today’s right-to-vote doctrine.

Panel 1 (2:00 pm - 3:30 pm): This panel will explore the Nineteenth Amendment’s role in constitutional interpretation both inside and outside of the courts in the century after suffrage.

Speakers:   

Steven Calabresi, Northwestern University Pritzker School of Law
Paula A. Monopoli, University of Maryland Francis King Carey School of Law (selected from a Call for Papers)
Reva B. Siegel, Yale Law School
Julie C. Suk, The Graduate Center, City University of New York

Moderator:  Louis J. Virelli III, Stetson University College of Law

 

December 4, 2019 in Conferences, Constitutional, Gender, Law schools, Legal History | Permalink | Comments (0)

Wednesday, November 20, 2019

The History of Constitutional Amendments for Women's Equality, from the 16th to the 19th to ERA

Here is a short piece I wrote for the American Bar Association's public education online magazine:

Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)

The Nineteenth Amendment to the U.S. Constitution guaranteeing women’s right to vote was passed by Congress one hundred years ago on June 4, 1919. Many[JD1]  states quickly ratified the amendment, though it would be a close call when the final state, Tennessee, pushed the amendment into law in August 2020. When first proposed, the vote or “suffrage” was just one of many civil and social rights demanded by women. But it became the primary focus of the women’s rights movement in the late nineteenth and early twentieth centuries, fueled by political allegiances with conservative temperance women and supported by focus on the vote as the primary right of citizenship as embodied in the new Fourteenth and Fifteenth Amendments. 

One year after the passage of the Nineteenth Amendment, women’s rights leaders resurrected the demands for gender equality in aspects of society by proposing the first Equal Rights Amendment (ERA) in 1921. The ERA would have guaranteed that civil and legal rights cannot be denied “on the basis of sex.” From the beginning, however, the ERA was met with opposition including from women themselves, with conservative women concerned about impact on the family and progressive women concerned about impact on labor and union rights. It would take another fifty years before both national political parties would endorse the ERA, and Congress passed the ERA in 1972 guaranteeing that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The necessary two-thirds of the states, however, failed to ratify the ERA, even after an extension of the deadline. 

A modern movement has renewed efforts to pass the ERA, still believing in the necessity of a constitutional guarantee of the broad legal and social equality of women first advanced 171 years ago. This essay traces the history of the women’s constitutional demands for equality, from its origins in Seneca Falls, the adoption of the Nineteenth Amendment, the proposed ERA, and modern efforts for a new amendment to secure gender equality.

November 20, 2019 in Constitutional, Gender, Legal History | Permalink | Comments (0)

On the Constitutionality of the Deadline for Constitutional Amendments like the ERA

Danaya Wright, "Great Variety of Relevant Conditions, Political, Social and Economic": The Constitutionality of Deadlines on Amendment Proposals Under Article V, 28 Wm. & Mary Bill Rts. J. 1 (2019)

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing deadlines on amendment proposals began in 1917 with the Eighteenth Amendment, but has not been consistent since. Deadlines appear to have originated as an effort to torpedo amendments by opponents, but have since become almost pro forma. Some argue deadlines ensure finality and closure;8 others argue they infringe on the power of states to control the ratification process free of unconstitutional limitations imposed by the national legislature.

With the 1992 ratification of the Twenty-Seventh Amendment after 203 years, and state ratifications of the ERA after 35 years,11 the issue of congressional deadlines is both front and center and of potentially enormous consequence. This Article examines the history, theory, and policy of amendment deadlines and argues that they are unconstitutional limitations on state power, inconsistent with the federalism guarantees of the founding. This issue will almost certainly require resolution by the Supreme Court, which needs to give the issue of congressional deadlines its most thoughtful attention.

November 20, 2019 in Constitutional, Legal History, Legislation | Permalink | Comments (0)

Thursday, October 31, 2019

Women and the Law, Halloween Edition. (Hint: It's About Witches)

Image result for salem witch trials

 

It's Halloween... which for law and gender means time to remember the Salem Witch Trials. 

Most of the victims of the trials were women.  And most of the accusers.  Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power.  They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.

Stacy Schiff, The Witches: Salem, 1692 (2015)

Carol Karlsen, The Devil in the Shape of a Woman (1998)

Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)

Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)

Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)

See also Gender Law Prof Blog, Witchcraft Related Violence: Human Rights Violations Against Women Labeled "Witches"

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October 31, 2019 in Legal History, Pop Culture | Permalink | Comments (0)

Wednesday, October 23, 2019

Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical Context

Joanna Grossman, The Pregnant Pause: Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical ContextVerdict

Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***

 

Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***

 

In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***

 

At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.

 

October 23, 2019 in Constitutional, Education, Equal Employment, Family, Legal History, Pregnancy, SCOTUS | Permalink | Comments (0)

Wednesday, October 2, 2019

Reading the 19th Amendment into Constitutional Jurisprudence

Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution

Providing an excellent macro-level account of how the 19th Amendment is relevant to constitutional interpretation today, in reading the 19th Amendment and its history into a jurisprudence of equality.

Abstract:

This year marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the United States Constitution, a radically pro-democratic amendment that empowered roughly ten million women to vote in a general election for the first time. Given the practical and expressive significance of the Amendment, it is appropriate that the United States is honoring the occasion. But Americans might do more than honor their shared past. They might be encouraged to think about why the story of the Nineteenth Amendment matters to Americans living today. That story includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits the story of the Nineteenth Amendment—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why that story relates to the lives of contemporary Americans. Its overarching objective is to suggest that the full story of the Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay makes four points in four parts. The first two explain when and how voting rights for all women slowly became a reality, and the final two identify some implications of that history for American constitutional law and contemporary constitutional politics.

Part I considers which women were enfranchised when and why it matters. Part II considers some of the groups (men) and structures (federalism) that both impeded and facilitated woman suffrage. Part III explains the link between restrictions on woman suffrage and the social subordination of women to men, showing how the anti-subordination rationale of the Nineteenth Amendment bears on both its own interpretation and the interpretation of the Equal Protection Clause by the courts. Part IV turns to the contemporary implications of the story of the Nineteenth Amendment for American constitutional politics, including debates over the Equal Rights Amendment, unequal pay for equal work, paid family and self-care leave, and restrictions on access to contraception and abortion.

October 2, 2019 in Constitutional, Family, Legal History, SCOTUS | Permalink | Comments (0)

Monday, September 30, 2019

History of the French Shadow Jury of Women

Sara Kimble, Of "Masculine Tyranny" and the Women's Jury": The Gender Politics of Jury Service in Third Republic France, Law & History Review (2019)

In 1905 Hyacinthe Bélilon (1846–1913) and Camille Bélilon (1851–1930), two sisters working under pseudonyms as writers, began attending criminal trials and issuing unofficial verdicts as part of a new organization: the jury féminin, the women’s jury. Led by the sisters, this organization consisted of a panel of twelve female jurors who attended trials in Paris.  As witnesses to the courtroom spectacle, these women would have been seated as members of the public audience, behind the gates of the barreau, the open space where attorneys and witnesses addressed the judges. Following each trial, the jury féminin issued their own unofficial verdicts and published their reasoning in the monthly newspaper Journal des femmes over a period of 5 years.  The resulting trove of verdicts for eighty cases highlights the ways in which these unauthorized female jurors made decisions to exonerate or assign responsibility to the defendants.

 

The jury féminin contributed to a sustained public protest against male bias in the justice system, a condemnation of official all-male juries’ role in perpetuating a double moral standard and the inequalities of the French civil and penal codes. Their feminist legal commentary on criminal cases challenged the assumption that the legal system provided equal treatment for female victims or defendants. These activists’ courtroom appearances and published articles were forms of protest that furthered the political campaign to admit women to criminal juries, and by extension, to promote an enlarged role in civic life for women.

September 30, 2019 in Courts, International, Legal History | Permalink | Comments (0)

Wednesday, September 18, 2019

Rethinking the Supreme Court's Decision in Muller v. Oregon through an Intersectional Lens

Emily Prifogle, Law & Laundry: White Laundresses, Chinese Laundrymen, and the Origins of Muller v. Oregon  
Forthcoming, Studies in Law, Politics, and Society

This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely the entangled histories of white laundresses’ labor and labor activism in Portland, as well as the labor of their competitors — Chinese laundrymen. In so doing, the article offers an intersectional reading of Muller that incorporates regulations on Chinese laundries and places the decision in conversation with a long line of anti-Chinese laundry legislation on the West Coast, including that at issue in Yick Wo v. Hopkins (1886).

September 18, 2019 in Constitutional, Gender, Legal History, Race | Permalink | Comments (0)

Tuesday, September 10, 2019

Anna Julia Cooper, Activist for Black Women's Suffrage and Social Service

The Atlantic, How Black Suffragettes Subverted the Domestic Sphere

A few decades after her graduation from Oberlin College, the scholar and educator Anna Julia Cooper wrote a stern missive in the Ohio university’s alumni journal. Having relocated to Washington, D.C., where she worked in the district’s first Colored Settlement House, Cooper wrote in the early 1900s with clarity and conviction about the importance of social service. She exalted the domestic sphere as a cornerstone of broader community support—and, in doing so, also illustrated just how unevenly groups like white religious entities metered their care. Her letter, published amid the struggle against gendered discrimination at the ballot box, revealed rifts in which groups of Americans most readily earned others’ sympathy and respect. One hundred years after the passage of the 19th Amendment guaranteed white women the right to vote, Cooper’s work still offers an instructive lens through which to consider social movements and interpersonal dynamics alike.

Like those made by other black suffragettes, the statement, titled “The Social Settlement: What It Is and What It Does,” was an often pithy indictment of the sociopolitical landscape—and, implicitly, a blueprint for what might be improved. ***

 

Sometimes referred to as the mother of black feminism, Cooper was born into slavery around 1858 in Raleigh, North Carolina. She would go on to spend most of her long academic and community–oriented career living in Washington, D.C., where she helped establish the Colored Women’s League (which later became part of the National Association of Colored Women’s Clubs, led by the likes of Mary Church Terrell, the organization’s first president). As white women across America endeavored to secure voting rights for themselves—and made calculated choices to exclude black people from those efforts—Cooper produced some of the most foundational analysis of injustice in the United States, most notably the overlaps of racism and sexism.

September 10, 2019 in Legal History, Race | Permalink | Comments (0)

Thursday, September 5, 2019

CFP Rethinking First Wave Feminism

Signs Special Issue: Rethinking “First Wave” Feminisms

Over the past several decades, scholarship in a variety of disciplines has challenged the “wave” model of feminism. Inspired by the 2020 centennial of the Nineteenth Amendment, this special issue seeks to rethink “first wave” feminisms in a heterogeneous and expansive way—by pushing geographic, chronological, and ideological boundaries and by broadening the definition of whom we usually think of as early feminists. While contributions on the Nineteenth Amendment in the United States, and the suffrage movement worldwide, are welcome, we also encourage submissions that consider early manifestations of feminism and feminist movements in broad and global terms. Scholars from all disciplines are encouraged to submit their work.

The editors invite essays that consider questions along but by no means limited to the following lines:

  • How were the era’s signal achievements—the global movement for universal suffrage, international labor legislation for women and children, international human rights, and transnational solidarities around a range of goals—achieved? What compromises were entailed in the legislative accomplishments, and what possibilities did their passage enable? What accomplishments were outside the realm of legislation?
  • In our scholarly and popular retellings, what is celebrated, and what is silenced? Are there historical figures, or events that have been written out of the story, and why?
  • What were the racial politics of the first manifestations of feminism? How do we understand—in light of the intervening history—the compromises and political exigencies that led to the passage of the Nineteenth Amendment and similar developments worldwide? How do the exclusions of the era help us recognize the exclusions of our own?
  • What were the sexual politics of early feminisms? What role did class- and race-based understandings of respectability play? What role did reproductive rights and justice play?
  • What are the feminist implications of the medical history of the era, notably the movement for birth control, underground abortion networks, and early transgender movements?
  • What were the class politics of early feminisms, and what role did political economy and labor play in feminist thought and activism?
  • How do we understand first-wave feminisms through the frames of the Romantic and modernist turns? How did new literary, visual, and musical representations of women shape (and how were they shaped by) women’s newfound status as public and political actors?
  • How do we understand the long history of feminism in terms of coterminous (and overlapping) movements and developments, including but not limited to war, imperialism, revolution, socialism, migration, urbanization, pandemic, progressivism, abolitionism, Reconstruction, segregation, and fascism—and how does this confluence shed light on the present era?
  • Can we understand early feminisms as media phenomena shaped by (and shaping) the communications and technological developments of their era, notably the telegraph, radio, and the increasing proliferation of print culture? What key texts (including literary texts) articulated important feminist theories and galvanized activism?
  • Finally, how could we understand the initial emergences of feminism and its subsequent history if we rejected the wave metaphor and instead conceive of early feminism—with its limitations and its extraordinary achievements—as a beginning that casts a clear and compelling light on the feminist activism to come?

Signs particularly encourages transdisciplinary and transnational essays that address substantive feminist questions, debates, and controversies without employing disciplinary or academic jargon. We seek essays that are passionate, strongly argued, and willing to take risks.

The deadline for submissions is September 15, 2020. The issue will be guest edited by Susan Ware, general editor of the American National Biography and Honorary Women’s Suffrage Centennial Historian at the Schlesinger Library, and Katherine Marino, assistant professor of history at UCLA.

Please submit full manuscripts electronically through Signs’ Editorial Manager system at http://signs.edmgr.com. Manuscripts must conform to the guidelines for submission available at http://signsjournal.org/for-authors/author-guidelines/.

September 5, 2019 in Call for Papers, Legal History, Theory | Permalink | Comments (0)

Book Podcast The Importance of Studying Women's History

Cover of Oxford Handbook of American Women's and Gender History

 

Podcast, The Case for Women's History

In the spring of 2019, a widely circulated column assailed the field of history for being too “esoteric,” in particular calling out subfields like women’s and gender studies. The executive director of the American Historical Association, Jim Grossman, wrote a response suggesting that the critic should have talked to actual historians about why fields that may seem esoteric are actually very valuable. Today’s guests are the editors of the Oxford Handbook of American Women’s and Gender History.

 

Ellen Hartigan O’Connor and Lisa Materson, both professors of history at the University of California, Davis, join us to discuss the field of women’s studies, which as they’ve argued in the introduction to the book, is not an esoteric topic at all, but actually quite critical to our understanding of American history.

***

 

So the core of women’s and gender history as a field is archive innovation. Because, to your point about, you know, the lack of sources, or voices don’t appear in archives, the whole field is built around, in many instances, writing histories of people who either appear sparsely in records, in court cases, in business correspondence, or in diplomatic treaties for example. So they appear either very infrequently or not at all. And alternatively, these are archives, or the records that have been created, not from the perspective of women. And so as a result, the field has developed a range of approaches that interrogate the archive, and are innovative in the in the way that they approach it to recover the history of those of women, for example, and those individuals who haven’t historically appeared in the archive.

 

And I think it’s worth mentioning that what are sometimes just referred to as silences, or “the sources are not there.” I think the most recent scholarship on Women’s and Gender history points out that those silences are deliberate that the sources are the result of records created by people in institutions in order to consolidate power. That that was an essential part of creating the archive is to consolidate power over women over other women, men over women, heterosexuals over non binary folks. And so rather than to lament the sources that are not there–and it’s the task of women’s agenda historians both to read against the grain as they say–but also to critically analyze the way that the archive itself deliberately silences these voices.

September 5, 2019 in Books, Legal History | Permalink | Comments (0)

Thursday, August 29, 2019

How the Equal Rights Amendment would Affect Women's Rights

 I'm quoted in this article in Time on the history and future of the ERA.

Tara Law, Time, The U.S. Constitution Doesn't Guarantee Equal Rights for Women. Here's Why.

When American women won the right to vote — a milestone commemorated on Women’s Equality Day, which marks the anniversary of the Aug. 26, 1920 certification that the 19th Amendment had been ratified — it was just one part of an even larger fight for equality. From Mary Church Terrell’s endeavors to make sure African-American women were included in the fight for suffrage, to Margaret Sanger’s work to promote access to birth control, to Ruth Bader Ginsburg’s efforts to eliminate sex discrimination in the law, women before and after that day in 1920 have fought for wider rights.

 

And yet, the U.S. Constitution does not say that people are equal regardless of their sex.

 

This fact came close to changing in 1972, when the U.S. legislature passed the Equal Rights Amendment (ERA), which stated that rights cannot be denied “on account of sex.” But after conservatives mobilized opposition to the ratification of the proposal, the amendment fell short of the three-quarters majority needed to add the ERA to the Constitution. Now, as the Equal Rights Amendment has regained momentum — with two more states, Illinois and Nevada, recently ratifying it — advocates say that there’s a new opportunity for the ERA to move ahead. ***

How would an Equal Rights Amendment affect women’s rights?

Although American women have made significant gains in equality since the 1970s — and certainly since the 1920s — advocates say that an Equal Rights Amendment could still have a profound effect on the law and on American society.

 

Advocates say that the amendment is help back by the sense among some people that it’s not necessary, but proponents argue that it could strengthen the legal basis for combating violence against women, pay inequality and maternity leave.***

 

Professor Tracy Thomas of The University of Akron School of Law tells TIME that the law would prevent women’s rights from sliding back, and eliminate some “wiggle room” that leaves space in the law for stereotypes to affect civil rights. She also argues that protecting women’s rights in the Constitution would have a major cultural impact.

 

There’s this overriding structure of the highest law in the land that has this absolute command, and so that has to trickle down,” says Thomas. She says that recent events such as the rise of the #MeToo movement reveal how quickly society can change. “Once you start changing the culture and the dialogue, things that were acceptable become unacceptable really quickly.”

August 29, 2019 in Constitutional, Equal Employment, Legal History | Permalink | Comments (0)

CFP AALS Women in Legal Education Section "A Century Since Suffrage"

Call for Presentations and Papers – Monday, September 23 Deadline


The Women in Legal Education (WILE) Section of the American Association of Law Schools Seeks submissions for the American Association of Law Schools Annual Meeting January 2-5, 2020 in Washington, D.C.

The Section on Women in Legal Education is pleased to announce a Call for Papers from which presenters will be selected to participate in the Section’s main program at the AALS 2020 Annual Meeting in Washington, D.C. The program, A Century Since Suffrage: How Did We Get Here? Where Will We Go? How Will We Get There?, will explore the legal accomplishments and failures of the women’s movement since 1920. A century ago, women won the right to vote. Since then, women garnered additional rights in virtually every legal area, including in the realms of employment, property, reproduction, education, caretaking, sexual freedom, and protection from violence. Despite significant success, much work remains.

This session will consider the future of the women’s movement through a critical examination of our past as guided by three multi-faceted inquiries:
(1) How did we get here?
Topics can include, for example: Who shaped the movement’s path? What were the movement’s guiding ideologies, practices, and priorities? Where did the movement fail? How did the exclusion of African American and other minority women shape the movement’s trajectory and goals? How did the prioritization of some issues over others impact women’s lives and the reality of sex equality?
(2) Where will we go?
Topics can include, for example: What are or should be our priorities as we move forward? How do we continue our work given the current political climate, assault on women’s rights, and status of our world? How will our understandings of gender shift the goals of the women’s movement? What impact will intersectionality have on the movement?
(3) How will we get there?

Topics can include, for example: Who will shape our actions and goals as we move forward? Which philosophies will guide us? What are the obstacles in our path? What have we learned from our past and how will that knowledge guide us into the future?
Submission guidelines: We welcome proposals for 30-minute presentations on these topics. Proposals for presentations should be sent as an e-mail file attachment in MS Word to

Professor Rona Kaufman at kitchenr@duq.edu by Monday, September 23, 2019. She will confirm receipt of all submissions. Proposals for presentations should be 500-1500 words long, and should denote the topic to be addressed, any special technological needs for the session, the presenter’s background, years of teaching, institutional affiliation, and contact information. All abstracts will be reviewed by members of the WILE Program Committee. Selected professors will present their work at the 2020 AALS Annual Meeting. Full drafts of articles based on conference presentations will be due by July 1, 2020. Final versions of the articles will be due by August 19, 2020. Accepted articles will be published in the Winter 2021 issue of the Duquesne Law

August 29, 2019 in Call for Papers, Conferences, Legal History | Permalink | Comments (0)

Tuesday, August 13, 2019

Central Park's First Statute of Real (rather than Fictional) Women Redesigned to Include Sojourner Truth with Women's Suffrage Leaders Elizabeth Cady Stanton and Susan B. Anthony

From Press Release:

Today, Monumental Women’s Statue Fund announced a redesigned statue that will honor pioneering women’s rights advocates and will be the first statue depicting real women in the 165-year history of New York City’s Central Park.

The amended design includes Susan B. Anthony, Elizabeth Cady Stanton, and Sojourner Truth.  All three are remarkable and monumental women’s rights pioneers who were New Yorkers and contemporaries. In the amended design, nationally-recognized sculptor Meredith Bergmann shows Anthony, Stanton, and Truth working together in Stanton's home, where it is historically documented they met and spent time together.

The NYC Public Design Commission must review the amended design of the statue, which will be unveiled on The Mall in Central Park on August 26, 2020, the 100th anniversary of the ratification of the 19th amendment, when women constitutionally won the right to vote. Next year is also the 200th anniversary of Susan B. Anthony’s birth.

“Our goal has always been to honor the diverse women in history who fought for equality and justice and who dedicated their lives to the fight for Women's Rights. We want to tell their stories and help create a full and fair historical record of their vast and varied contributions. When the Public Design Commission unanimously approved our previous design with Anthony and Stanton, but required that a scroll with names and quotes of 22 diverse women’s suffrage leaders be removed, we knew we needed to go back to the drawing board and create a new design.  It is fitting that Anthony, Stanton, and Truth stand together in this statue as they often did in life.” said Pam Elam, President of Monumental Women.

Central Park's First Statute of Real Women Redesigned to Include Sojourner Truth

Last year’s unveiling of designs for the first statue in Central Park’s 165-year history that depicts real historic women–a sculpture of Elizabeth Cady Stanton and Susan B. Anthony–was met with mixed reviews: Why didn’t the statue, set to be dedicated in August of 2020, marking the 100th anniversary of nationwide women’s suffrage, include any of the many African-American women who aided in the cause? Today it was announced that a redesigned statue honoring pioneering women’s rights advocates will include Susan B. Anthony, Elizabeth Cady Stanton, and Sojourner Truth, an escaped slave and abolitionist who joined the fight for women’s rights.

August 13, 2019 in Legal History, Pop Culture | Permalink | Comments (0)