Gender and the Law Prof Blog

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

Tuesday, July 7, 2020

Mount Rushmore will Temporarily Put Women on the Rocks

Wash Post, 19th Amendment Anniversary Celebration will Put Women on Mount Rushmore, Temporarily

In late August and early September, Korp’s project, “Look Up to Her,” will become one of a number of ways the Women’s Suffrage Centennial Commission will mark the anniversary, along with a commemorative coin and medal produced by the U.S. Mint and a virtual event at the Kennedy Center. She’ll project the images of 14 female leaders of the suffrage and civil rights movements on Mount Rushmore, including women who never themselves got the right to vote.

 
For two weeks, Abigail Adams, Sojourner Truth, Clara Barton, Harriet Tubman, Elizabeth Cady Stanton, Susan B. Anthony, Ida B. Wells, Alice Paul, Jeannette Rankin, Gladys Pyle, Mabel Ping-Hua Lee, Zitkala-Sa, Nellie Tayloe Ross and Rosa Parks will be projected in pairs flanking Mount Rushmore’s four presidents — George Washington, Thomas Jefferson, Abraham Lincoln and Theodore Roosevelt — in several-minute increments.

 

When the 19th Amendment was ratified on Aug. 18, 1920, it granted American women the right to vote after nearly a century of protest. But black women still faced significant barriers to casting ballots. Native American women were still not considered U.S. citizens. The Chinese Exclusion Act prevented Chinese immigrants from becoming U.S. citizens until 1943.

 

Korp says she intentionally chose to include women such as Truth, who was born a slave and died before she had the right to vote; Zitkala-Sa, a Native American who at the time was not a citizen under U.S. law; and Lee, a Chinese immigrant who fought for suffrage knowing it would not apply to her.

July 7, 2020 in Legal History, Pop Culture | Permalink | Comments (1)

Thursday, July 2, 2020

Challenging the Idea of Women Judging Differently: The Jurisprudence of the First Woman Judge, Florence Allen

I've just posted my recent research on Judge Florence Allen, a law review article previewing the book in progress.

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Tracy A. Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently (posted July 2, 2020)

A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men.

This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference in judging. Judge Allen was the first woman judge many times over: the first woman elected to a general trial court (Cuyahoga County Common Pleas in 1920), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit in 1932), and the first woman shortlisted for the U.S. Supreme Court. Her forty years on the bench included cases of constitutional law, administrative power, criminal process, labor rights, and patent cases. Using original archival research, this Article shows that Allen's judicial record supports the conclusion that women judge no differently from men. However, Allen worked hard to cultivate this conclusion, seeking to distance herself from claims of women’s difference and inferiority, and instead seeking to establish that women could “think like a man.” Her deliberate effort was to judge in a moderate, neutral, and objective manner, distancing the work from her feminist activism. Overall the historical record reveals the jurisprudence of the first woman judge as one of moderation, fitted to the male-centric norms of the profession and rejecting any promise of women’s advocacy on the bench.

July 2, 2020 in Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Wednesday, July 1, 2020

The Context and Meaning of the Nineteenth Amendment--Implications for Immigration, Citizenship, and Gender Equality

Amalia Kessler, Introduction to Special Issue

The centennial offers an occasion to explore the amendment’s complex and contradictory legacies, including not only its achievements, but also its limitations and failures. With important contributions by Professors Felice Batlan and Tracy A. Thomas, this thought-provoking special issue contributes to the ongoing national conversation.


Both Batlan and Thomas situate the Nineteenth Amendment within a much longer struggle for women’s equality—one that began well before the Amendment’s ratification in 1920 and that has continued to this day. While recognizing the historic significance of the Amendment’s formal guarantee that the right to vote “shall not be denied or abridged . . . on account of sex,” the authors also explore how and why the Amendment’s revolutionary potential to promote meaningful equality for women was, right from the get-go, significantly constrained and undermined.***

 

 

While Batlan and Thomas focus first and foremost on the question of history—on how we should understand the Nineteenth Amendment in relation to the struggles that led to its ratification and implementation—they also raise profound and difficult questions regarding the present and future. As Batlan notes, we are now living through a period of renewed xenophobia, as our current presidential administration fuels the flames of ant-immigrant hatred and seeks to curb immigration, including not least the “chain migration” that enables family reunification. The parallels between the experiences of the families served by the Chicago Immigrants’ Protective League a century ago, as detailed by Batlan, and those we encounter in the newspapers today are striking and chilling. As we read about U.S. citizens who are wrongfully detained by U.S. Immigration and Customs Enforcement—with race often used as a proxy for citizenship—it is tempting to denounce these events as un-American. But both Batlan and Thomas remind us that, sadly, we have a long tradition of differentiating between the citizenship rights of different individuals on the basis of race, gender, and class.

 

Thomas, in turn, highlights the important parallels between the demands for comprehensive structural reform that lay at the core of first-wave feminism and those that we see renewed today, including in the recently reenergized campaign for ratification of the ERA. Today’s calls to remake the social, legal, and political
order, she suggests, “ask[] nothing different than what women have been asking for one hundred and seventy years.” As with Batlan’s emphasis on the parallels between anti-immigrant and anti-women sentiment and legislation a century ago and our present-day environment, Thomas’s emphasis on the continuous nature
of unsatisfied feminist demands is, to say the least, sobering. But at the same time, historical memory and lineage can be empowering. To be reminded that we walk in the shoes of others who have come before is to hear the call to pick up the baton. 

Felice Batlan, "She Was Surprised and Furious": Expatriation, Suffrage, Immigration, and the Fragility of Women's Citizenship, 1907-1940,  15 Stanford J. CR & CL 315 (2020)

Tracy Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stanford J. CR & CL 349 (2020)

July 1, 2020 in Constitutional, Legal History | Permalink | Comments (0)

Wednesday, June 24, 2020

More Than the Vote: The 19th Amendment as Proxy for Systemic Gender Equality

I have just published my article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stanford J. Civil Rights & Civil Liberties 349 (2020).

Elizabeth Cady Stanton, pioneering leader of the women’s rights movement in the nineteenth century, famously declared the right of women to vote in 1848 at a convention in Seneca Falls, New York. She alone initially appreciated the importance of the vote both for women’s political power and participation in the governance of the country, as well as its symbolic meaning for women’s full citizenship. Her abolitionist and religious colleagues, however, were suspicious and a bit outraged by the suffrage demand, as these moralistic reformers were opposed to politics, which they viewed as fundamentally corrupt due to bribery, patronage, and abuse of power. Stanton’s friend and co-organizer Lucretia Mott was worried the demand would make the meeting “look ridiculous” and Stanton’s husband, Henry, dismissed the suffrage claim as a “farce.”

 

Nevertheless, they persisted. For seventy-two more years, women activists would fight for the right to vote by organizing annual conventions, creating associations, petitioning legislatures and constitutional conventions, writing editorials, delivering speeches, and campaigning door-to-door for what would become the Nineteenth Amendment to the U.S. Constitution.

 

This nearly century-long movement for suffrage, however, was never just about the vote. It originated as part of a comprehensive plan for women’s equality as proclaimed at Seneca Falls in the women’s Declaration of Sentiments. Stanton, the intellectual driver of the first women’s rights movement, conceptualized the vote as only one of the needed rights of women to access the political process. The elective franchise was a key piece of reform to provide women access to the right to make the laws that governed them, but it was never the sole goal. Rather, Stanton’s first-wave movement envisioned a full-scale reform of law and society to bring about women’s freedom and equal opportunity. Change was needed, she argued, in four venues: the state, family, industry, and church. She described women’s oppression as “a fourfold bondage” with “many cords tightly twisted together, strong for one purpose” of woman’s subordination.

 

Despite these broad equality efforts targeting multiple systems, the vote emerged as the primary demand for women’s rights. The Civil War “effectively killed the initial collectivity behind the broadly based humanitarian goals of the Seneca Falls Convention.” After the war, Reconstruction and the Civil Rights Amendments focused the national conversation on federal constitutional change, and particularly on the power of the vote prioritized in the Fifteenth Amendment. The Fourteenth Amendment also highlighted the issue of the vote for women by explicitly inserting gender into the Constitution for the first time, enforcing the right to vote guaranteed to “male inhabitants” and “male citizens.” Women’s rights advocates were drawn into this constitutional debate, forced to
narrow their focus and react to the national dialogue on suffrage.***

 

Pulled into this national constitutional movement, women’s rights activists utilized the demand for the vote as a proxy for a greater comprehensive agenda of both equality and emancipation from oppression. As Stanton later recalled, the vote was not the central idea of Seneca Falls, but rather “the social wrongs of my sex occupied altogether the larger place” in the early movement.  Her advocacy for the vote thus came to represent full citizenship rights, defined as full equality in civil rights and emancipation from oppressive social and religious norms.

 

This essay first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women. This long view of women’s rights shows it was never only about the
vote; rather, the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. 

June 24, 2020 in Constitutional, Legal History, Religion | Permalink | Comments (0)

Wednesday, June 10, 2020

Exploring the Toxic Racial Construct of the Black Welfare Queen

Catherine Powell & Camille Gear Rich, The “Welfare Queen” Goes to the Polls: Race-Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, Geo.L.J., 19th Amendment, Special Edition (forthcoming)

As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our celebration would be premature if we failed to reflect on the ways that race has been used to fracture women’s efforts at coalition politics and our understanding of women’s rights. Indeed, a careful reading of U.S. history and contemporary politics shows that although similar rights claims are made across a diverse community of American women, women’s shared interests are often obscured by the divisive manipulation of race. Notably, 2020 is also the 150-year anniversary of the Fifteenth Amendment, which granted the right to vote to Black men. In this Article, we use the coinciding anniversaries of the two amendments as a critical opportunity to direct feminist attention to intersectional questions—to frame this historical moment as a pivot point that explores the mutually constitutive nature of gender and racial subordination in American politics.

In service of these goals, we use this Article to explore a toxic racial construct often used to distract American women from our shared rights claims—the political trickster known as the “welfare queen.” This construct was born as a result of fiscal conservatives’ attacks on government anti-poverty subsidy programs in the 1980s. It relied on antipathy toward Black women—characterized as “welfare cheats” or frauds—and pathologized women of color to call for aggressive cuts to social-safety-net programs. This Article explores the remobilization of this construct in present-day electoral politics and the ways in which it compromises cross-racial coalitions and obscures the path to reform. We take as our object the 2016 presidential election and its aftermath, for in 2016, then-presidential candidate Donald Trump and his surrogates reanimated the welfare queen construct and alleged that she was stealing American democracy through voter fraud. The visceral power of this construct allowed this group of Republicans to transform Americans’ understanding of voting rights and American democracy. In so doing, their representations simultaneously sidetracked feminist efforts to build strong cross-racial coalitions. This Article explores the various paths out of our current discourse, dispelling thedistracting haze generated by the welfare queen construction. In the process, we also hope to advance our conceptual understanding of intersectional identities and their relationship to political change.

June 10, 2020 in Family, Legal History, Poverty, Race | Permalink | Comments (0)

Tuesday, June 9, 2020

How Courts Have Responded to Equal Protection Claims of Pregnant Citizens Since the Nineteenth Amendment

Reva Siegel, The Pregnant Citizen, from Suffrage to the Present, Georgetown L. J. (forthcoming)

This Article examines how courts have responded to the equal protection claims of pregnant citizens over the century women were enfranchised. The lost history it recovers shows how equal protection changed—initially allowing government to enforce traditional family roles by exempting laws regulating pregnancy from close review, then over time subjecting laws regulating pregnancy to heightened equal protection scrutiny.

It is generally assumed that the Supreme Court’s 1974 decision in Geduldig v. Aiello insulates the regulation of pregnancy from equal protection scrutiny. The Article documents the traditional sex-role understandings Geduldig preserved and then demonstrates how the Supreme Court itself has limited the decision’s authority.

In particular, I show that the Rehnquist Court integrated laws regulating pregnancy into the equal protection sex-discrimination framework. In United States v. Virginia, the Supreme Court analyzed a law mandating the accommodation of pregnancy as classifying on the basis of sex and subject to heightened scrutiny; Virginia directs judges to look to history in enforcing the Equal Protection Clause to ensure that laws regulating pregnancy are not “used, as they once were . . . to create or perpetuate the legal, social, and economic inferiority of women.” In Nevada Department of Human Resources v. Hibbs, the Court then applied the antistereotyping principle to laws regulating pregnancy, as a growing number of commentators and courts have observed.

I conclude the Article by considering how courts and Congress might enforce the rights in Virginia and Hibbs in cases involving pregnancy under both the Fourteenth and the Nineteenth Amendments. To remedy law-driven sex-role stereotyping that has shaped the workplace, the household, and politics, the Article proposes that Congress adopt legislation mandating the reasonable accommodation of pregnant employees, such as the Pregnant Workers Fairness Act. These sex-role stereotypes affect all workers, but exact the greatest toll on low-wage workers and workers of color who are subject to rigid managerial supervision.

When we locate equal protection cases in history, we can see how an appeal to biology can enforce traditional sex roles as it did in Geduldig—and see why a court invoking Geduldig today to insulate the regulation of pregnancy from scrutiny under Virginia and Hibbs would not respect stare decisis, but instead retreat from core principles of the equal protection sex-discrimination case law.

June 9, 2020 in Constitutional, Legal History, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Monday, June 1, 2020

New Book: Syndicate Women: Gender in Organized Crime

Chris Smith, Syndicate Women: Gender and Networks in Chicago Organized Crime

In Syndicate Women, sociologist Chris M. Smith uncovers a unique historical puzzle: women composed a substantial part of Chicago organized crime in the early 1900s, but during Prohibition (1920–1933), when criminal opportunities increased and crime was most profitable, women were largely excluded. During the Prohibition era, the markets for organized crime became less territorial and less specialized, and criminal organizations were restructured to require relationships with crime bosses. These processes began with, and reproduced, gender inequality. The book places organized crime within a gender-based theoretical framework while assessing patterns of relationships that have implications for non-criminal and more general societal issues around gender. As a work of criminology that draws on both historical methods and contemporary social network analysis, Syndicate Women centers the women who have been erased from analyses of gender and crime and breathes new life into our understanding of the gender gap.

June 1, 2020 in Books, Gender, Legal History | Permalink | Comments (0)

Wednesday, May 27, 2020

The Strong Public Support for the ERA, Except for the Insurance Industry

Carrie Baker, Ms., Reports of the ERA's Death Have Been Greatly Exaggerated

This is the final installment in a six-part series examining the half-century fight to add women to the U.S. Constitution—and a game plan on where we go from here.

Get caught up:

But today, despite resistance from Republicans in Congress and from the Trump administration, public support for the ERA is currently sky-high: The American Bar Association’s (ABA) 2020 Survey of Civic Literacy showed that a wide majority of respondents—83 percent—believe the Equal Rights Amendment (ERA) should be ratified and incorporated into the U.S. Constitution. Only 8 percent opposed.

“That’s a powerful statement about what the public believes in,” said ABA president Judy Perry Martinez, for it “tells us is that Americans believe in equal rights for women and they know that until those words are in our Constitution, those equal rights will not in fact be believed and achieved by all.”

But, just like in the initial push for the ERA in the 1970s, opposition from business interests, especially the insurance industry, are ERA enemy number one.

“‘Women’s equality’ is not just words,” Smeal says. “It means real things, especially in the area of money. It means you have to stop discriminating against women in employment and in annuities, life insurance and health insurance. It involves billions and billions of dollars.”

Of course, earlier this year, under the leadership of Speaker Nancy Pelosi (D-Calif.), the House of Representatives voted to remove the arbitrary time line for the ERA with a bipartisan 232–183 vote.

“With this resolution, we take a giant step toward equality for women, progress for families and a stronger America—because we know when women succeed, America succeeds,” Pelosi said at a press conference ahead of the vote.

Meaning this fall, all eyes will be on the Senate.

May 27, 2020 in Constitutional, Legal History, Pop Culture | Permalink | Comments (0)

Tuesday, May 12, 2020

Video: Voting Rights in a Time of Pandemic, Thinking About Women's Suffrage and the 1918 Spanish Flu

Kimberly Hamlin, Laptop Lecture Series: Voting Rights in a Time of Pandemic

Have a minute? Check out today’s Laptop Lecture “Voting Rights in a Time of Pandemic” by Kimberly Hamlin, Associate Professor of History and American Studies, which explores how the 1918 Spanish Flu pandemic complicated suffragist efforts to pass the 19th Amendment in the House.

 

May 12, 2020 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, May 5, 2020

Recovering the Story of New York's First Woman Judge, Judge Jean Norris

Mae C. Quinn, Fallen Women Further (Re)Framed: Jewels and Travels, Tragedies and Secrets, Judge Jean Hortense Norris

Until recently, few knew the story of Jean Hortense Norris, her life, lawyering, and judicial role adjudicating  cases of alleged “fallen women.”

 

[I]hus, it may have seemed unlikely when about a decade later Mrs. Jean Hortense Norris—who continued using her married name—managed to graduate from New York University Law School to become one of the city’s first women lawyers and a leader in feminist legal activities, including representing defendants accused of prostitution in New York City’s Women’s Court.  It may have been even more astonishing that ten years after joining the bar she was named New York’s first woman judge, appointed to serve in the same Women’s Court where she previously defended alleged wayward women. And they may have become most shocked of all when, a decade after that, she was the focus of a high-profile investigation for unfair treatment of the accused sex workers before her, leading to what has been described as another downfall—her public removal from the bench in 1931 for being “unfit.” Or, perhaps these things did not surprise those closest to her at all.

 

Previous scholarship largely focused on her alleged misconduct as a jurist and official fall from grace. My prior Kansas Law Review article, Fallen Woman (Re)Framed, sought to surface and document more about Jean Hortense Norris—including details about her work as one of this country’s first practicing women attorneys and actions as a feminist legal activist even from the bench.

 

This said, as noted in that work, its more holistic telling was not intended to absolutely absolve Norris as a jurist. Rather, it promised future presentation of at least some additional facts about the judge and her life—including evidence that Seabury and his staff apparently did not investigate or introduce. This essay offers that expanded record. Exploring two different avenues of investigation that were overlooked by Seabury’s formal proceedings—or any other it seems—as postscript, this additional account may raise more questions than it answers.

May 5, 2020 in Judges, Legal History, Women lawyers | Permalink | Comments (0)

Friday, April 17, 2020

New Series "Mrs. America" Showcases Feminist Leaders and the 1970 Fight for the ERA, While Featuring Staunch Opponent, Phyllis Schlafly

NYT, "Mrs. America Review: The Voice of an ERA"

FX on Hulu’s breathtaking “Mrs. America,” from the “Mad Men” writer Dahvi Waller, picks up in 1971. . . . The story of the fight for and against the Equal Rights Amendment, it’s not a sequel, either literally or in format: It’s a nine-part series following real historical figures.***

 

Like “Mad Men,” “Mrs. America” finds a fresh angle on a much-observed age of revolution by focusing, first, on a counterrevolutionary: Phyllis Schlafly (Cate Blanchett), the cold warrior who, in Waller’s telling, seized on the culture war over women’s rights to raise her political profile and advance a broader conservative agenda.***

 

The insight of “Mrs. America,” in the punchy words of Representative Bella Abzug (Margo Martindale), is that Schlafly “is a goddamn feminist. She may be the most liberated woman in America.” She just chooses not to see herself that way.***

 

Parallel to Schlafly’s story is an ensemble series about the 1970s feminist movement. Its principals aren’t introduced until the end of the first episode: among them, Abzug, Gloria Steinem (Rose Byrne), Representative Shirley Chisholm (Uzo Aduba), Betty Friedan (Tracey Ullman) and some less-celebrated E.R.A. warriors, including the G.O.P. activist Jill Ruckelshaus (Elizabeth Banks).***

 

The decade-long fight that unfolds is epic and swaggering, bubbling with cultural ferment and bouncing along on a soul-laced soundtrack. There is an “Avengers Assemble” feeling here, both in the gathering of historical figures — a young Ruth Bader Ginsburg even appears, briefly — and the bumper crop of acting talent. Waller is producing feminism’s most ambitious crossover event, and she relishes it.***

 

While Schlafly is the driving force of the series — it is not, after all, called “Ms. America” — the show spotlights one character at a time. The third episode, about Chisholm’s 1972 run for the presidency, rings familiar not just in the story of an outsider fighting what she calls a “rigged” party machine, but in the intra-movement clashes over whether race and gender are equal priorities. (Chisholm, whom Aduba gives a fierce magnetism, gets this from black politicians, too, who see her more as a “women’s” candidate. “I don’t look black to you?” she asks.)

April 17, 2020 in Constitutional, Legal History, Pop Culture, Women lawyers | Permalink | Comments (0)

Tuesday, April 7, 2020

How the 1918 Flu Pandemic Helped Advance Women's Rights

How the 1918 Flu Pandemic Helped Advance Women's Rights

***One hundred years ago, a powerful strain of the flu swept the globe, infecting one third of the world’s population. The aftermath of this disaster, too, led to unexpected social changes, opening up new opportunities for women and in the process irreversibly transforming life in the United States.

 

The virus disproportionately affected young men, which in combination with World War I, created a shortage of labor. This gap enabled women to play a new and indispensible role in the workforce during the crucial period just before the ratification of the 19th Amendment, which granted women suffrage in the United States two years late

 

Why did the flu affect more men than women?

 
Known as the Spanish flu, the 1918 “great influenza” left more than 50 million people dead, including around 670,000 in the United States.

 

To put that in perspective, World War I, which concluded just as the flu was at its worst in November 1918, killed around 17 million people – a mere third of the fatalities caused by the fluMore American soldiers died from the flu than were killed in battle, and many of the deaths attributed to World War I were caused by a combination of the war and the flu.

 

The war provided near perfect conditions for the spread of flu virus via the respiratory droplets exhaled by infected individuals. Military personnel – predominantly young males – spent months at a time in close quarters with thousands of other troops. This proximity, combined with the stress of war and the malnutrition that sometimes accompanied it, created weakened immune systems in soldiers and allowed the virus spread like wildfire.***

 

It was more than just male conscription in war, however, that led to a greater number of men who were infected and died from the flu. Even at home, among those that were never involved in the war effort, the death rate for men exceeded that of women. Demographic studies show that nearly 175,000 more men died than women in 1918.

 

In general, epidemics tend to kill more men than women. In disease outbreaks throughout history, as well as almost all of the world’s major famines, women have a longer life expectancy than men and often have greater survival rates.

 

The exact reason why men tend to be more vulnerable to the flu than women continues to elude researchers. The scoffing modern term “man flu” refers to the perception that men are overly dramatic when they fall ill; But recent research suggests that there may be more to it than just exaggerated symptoms.

 

Flu Brought More women into the Workforce

 

The worker shortage caused by the flu and World War I opened access to the labor market for women, and in unprecedented numbers they took jobs outside the home. Following the conclusion of the war, the number of women in the workforce was 25 percent higher than it had been previously and by 1920 women made up 21 percent of all gainfully employed individuals in the country. While this gender boost is often ascribed to World War I alone, women’s increased presence in the workforce would have been far less pronounced without the 1918 flu.***

 
Women began to move into employment roles that were previously held exclusively by men, many of which were in manufacturing. They were even able to enter fields from which they had been banned, such as the textile industry. As women filled what had been typically male workplace roles, they also began to demand equal pay for their work. Gaining greater economic power, women began more actively advocating for various women’s rights issues – including, but not limited to, the right to vote.***

 

How the Flu Helped Change People's Minds

 

Increased participation in the workforce allowed many women to obtain social and financial independence. Leadership positions within the workforce could now be occupied by women, especially in the garment industry, but also in the military and police forces. The U.S. even got its first woman governor, when Nellie Taylor Ross took her oath of office, in 1923, in Wyoming. An increased ability to make decisions in their personal and professional lives empowered many women and started to elevate their standing.

 

With the war over and increased female participation in the labor force, politicians could not ignore the critical role that women played in American society. Even President Woodrow Wilson began to argue in 1918 that women were part of the American war effort and economy more broadly, and as such, should be afforded the right to vote.

 

Outside of work, women also became more involved in community decision-making. Women’s changing social role increased support for women’s rights. In 1919, the National Federation of Business and Professional Women’s Clubs was founded. The organization focused on eliminating sex discrimination in the workforce, making sure women got equal pay and creating a comprehensive equal rights amendment.

See also Rebecca Onion, Did We Fail to Memorialize Spanish Flu Because Women Were the Heroes?

And yet, for years, Americans didn’t talk about it much in public. Historians of the flu, starting with Alfred Crosby, whose 1976 book America’s Forgotten Pandemic was the first comprehensive account of the outbreak in the United States, have long wondered at the curious fact that this terrible experience left so little mark on the cultural record. Looking at major American newspapers and political discourse in the years after the flu ended, Crosby found that the whole thing seemed to have vanished without a trace. “The flu never inspired awe, not in 1918 and not since,” Crosby wrote. Crosby notes that the major writers of that generation, who were busy memorializing the experience of the Great War and probing the depths of the “modern” soul, didn’t talk much about the flu either. It was left to a few scattered authors less central to the canon—Katherine Anne PorterWilliam MaxwellThomas Wolfe—to write about the epidemic in the ensuing decades. It wasn’t until the end of the 20th century that American historians and documentarians turned their attention to the pandemic.

 

 

April 7, 2020 in Equal Employment, Legal History | Permalink | Comments (0)

Friday, April 3, 2020

The Map Strategy of State Adoption of Women's Suffrage as Critical to Passage of the 19th Amendment

Really enjoyed the talk by historian Dr. Susan Schulten this morning at the virtual conference, Women's Enfranchisement Beyond the 19th Amendment

Here is a written essay that summarizes some of Dr. Schulten's points.  Susan Schulten, The Crooked Path to Women's Suffrage, Wash. Post.

Schulten discussed the "map strategy" of women's suffrage leaders during primarily the 19 teens.  Leaders used visuals and media to illustrate the acceptance of women's suffrage in the West.  The geographical maps boldly displayed the evolution of thought and the wave of progress moving from west to east. 

This map strategy supports a thesis that the suffrage state strategy was critical to the passage of the federal constitutional amendment.   We often dismiss this state strategy - dominant from 1885 to 1918, - as ineffective.  But Schulten's talk showed the converse.  That not only did the state by state approach work for full or partial suffrage in many states, but that it was this state success that provide the evidence for a federal amendment.  The state progress demonstrated the state experimentation with the issue and decision in favor of such rights as a foundation to bolster the legitimacy of the federal amendment.

As an aside, Schulten also added some facts to the historical question of why President Woodrow Wilson switched from anti suffrage to pro suffrage.  Schulten suggests it was the National American Women's Suffrage Associations (NAWSA's) support of Wilson and WWI  that swayed him to support it.  This was in contrast to Alice Paul and her National Women Party's (NWP) opposition to both Wilson and the war and her militant pickets of the White House in support of women's suffrage.  Kimberly Hamlin also tracks the active lobbying work of Helen Hamilton Gardender, NAWSA's lead lobbyist, as critical to Wilson's shift.  See Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardener (Norton 2020).  Schulten notes that Wilson wrangled the final vote for the 19th Amendment from peace talks at Versailles and as he battled the pandemic Spanish flu. 

April 3, 2020 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, March 24, 2020

Colorado Law Conference on the 19th Amendment and Women's Enfranchisement Moved Online

From the announcement: 

Please join Colorado Law for the 28th Annual Ira C. Rothgerber Conference, “Women’s Enfranchisement: Beyond the 19th Amendment," which has been modified to take place remotely on Friday April 3rd8:30 a.m. - 5:00 p.m. MT, through the use of a Zoom Webinar. The web-event is free, and has been approved for 6 general CLE credits.

2020 marks the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women, and is a presidential election year with an unprecedented number of female candidates running for offices nationwide. But barriers to both political rights and social, lived equality persist, particularly for women at the intersections of race, sex, and class. This web-based conference will use the centennial to take stock of how far we’ve come—and how far we have to go—in terms of formal political enfranchisement, as well as the social and economic empowerment of women more broadly. 

Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference. 

For more information on the panels and speakers please visit the CU Law Rothgerber event page.  We look forward to sharing this occasion with you!

Rothgerber Webinar Schedule | April 3, 2020

8:30-9:00am  Introductory Remarks by Suzette Malveaux (CU Law) 

9:00-10:00am  Keynote Address: Reva Siegel (Yale Law)

10:00-10:15am  BREAK

10:15am-12:00pm  PANEL 1

"Historical Perspectives on the 19th Amendment: Looking Back, Looking Forward”

  • Susan Schulten (University of Denver)
  • Carolyn Ramsey (Colorado Law)
  • Julie Suk (CUNY)
  • Mary Ziegler (FSU Law)

12:00-12:15pm  BREAK

12:15-2:00pm  PANEL 2

“Barriers to Political Representation”

  • Bertrall Ross (Berkeley Law)
  • Dara Strolovitch (Princeton)
  • Atiba Ellis (Marquette Law)
  • Ming H. Chen (Colorado Law)

2:00-2:15pm  BREAK

2:15-4:00pm  PANEL 3

“Lived Equality: Beyond Formal Political Rights”

  • Aya Gruber (Colorado Law)
  • Chinyere Ezie (Center for Constitutional Rights)
  • Diana Flynn (Lambda Legal)
  • Scott Skinner-Thompson (Colorado Law) 

4:00-4:30pm  Closing Remarks 

March 24, 2020 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Thursday, March 19, 2020

Exploring the Idea of a Common Law Right to an Abortion

Joanna Grossman, Women Are (Allegedly) People, Too, 114 Northwestern University Law Review Online 149 (2019)

Professor Anita Bernstein opens her book, The Common Law Inside the Female Body, with a startling “strange bedfellows” argument: William Blackstone and modern American feminists want the same thing. “The common law,” she argues “contains precepts and doctrines that strengthen the freedom of individuals; the feminist struggle against the subjugation of women pursues liberty.” Can this be the same Blackstone who articulated the doctrine of coverture and the severe impediments it imposed on the liberty of married women? His pronouncement that “the husband and wife are one person in law” — and that one is the husband — is the centerpiece of a doctrine that deprived married women of a panoply of civil rights like buying property, entering into contracts, and owning their own wages. These disabilities were lifted by statutes known as the “Married Women’s Property Acts,” but some impediments persisted into the twentieth century. But by the end of the book, Bernstein has made a compelling argument that common law principles, despite an inauspicious start, can “liberate women.” Indeed, there is little if anything in those principles that deprives women of the same rights as men. The common law may have “proceeded as if only men could enjoy its opportunities,” but that, she argues, is due to a “historical condition now supplanted.”

Once women became equal participants in civil society as well as in the justice system, there ceased to exist any basis for restricting the benefit of common-law principles to men. And, oh boy, the common law contains some juicy stuff that really could be deployed to advance the cause of gender equality. This Essay will consider and evaluate Bernstein’s argument that the common law supports a virtually unfettered right to terminate a pregnancy. It will situate her argument against the backdrop of the constitutional right of abortion, which has been the primary lens through which women’s reproductive rights have been viewed. The Essay will then consider the newly composed Supreme Court and the threat it portends to reproductive rights. It concludes by suggesting that the common law, as Bernstein understands it, could come to the rescue of women and their full humanity.

March 19, 2020 in Abortion, Legal History, Reproductive Rights | Permalink | Comments (0)

Wednesday, March 18, 2020

Historical Precedent and Originalism in Support of Recognizing the Equal Rights Amendment Without a Time Limitation

John Vlahoplus, Ratification of the Equal Rights Amendment: Lessons from Special Elections to the House of Representatives in 1837, 95 Indiana J. Supp. (forthcoming)

In 1837 the House of Representatives considered a governor’s attempt to include a limitation in a writ issued to fill a vacancy in representation pursuant to Article I, Section 2 of the federal constitution. The Representatives agreed almost unanimously that the limitation was unconstitutional and should be disregarded as mere surplusage rather than invalidating the writ and the election.

This Article suggests that the similar text of Article V gives Congress only the power to propose amendments, without any limitation, and states the power to ratify amendments or not, without any power to rescind. Consequently, the time limit that Congress purported to impose on ratification of the Equal Rights Amendment is unconstitutional surplusage, and state rescissions are ineffective. Virginia’s ratification on January 15, 2020 pushed the amendment past the three quarters threshold, making it a valid part of the federal constitution. The Article also considers lessons from the subsequent 1837 general elections and suggests that the Supreme Court — rather than Congress — should and likely will ultimately adjudicate the validity of the Amendment’s ratification.

March 18, 2020 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, March 17, 2020

The Imperfect Metaphor of the Waves of Feminism -- Historically Misleading and Politically Unhelpful

The Waves of Feminism and Why People Keep Fighting Over Them

***People began talking about feminism as a series of waves in 1968 when a New York Times article by Martha Weinman Lear ran under the headline “The Second Feminist Wave.” “Feminism, which one might have supposed as dead as a Polish question, is again an issue,” Lear wrote. “Proponents call it the Second Feminist Wave, the first having ebbed after the glorious victory of suffrage and disappeared, finally, into the sandbar of Togetherness.”

 

The wave metaphor caught on: It became a useful way of linking the women’s movement of the ’60s and ’70s to the women’s movement of the suffragettes, and to suggest that the women’s libbers weren’t a bizarre historical aberration, as their detractors sneered, but a new chapter in a grand history of women fighting together for their rights. Over time, the wave metaphor became a way to describe and distinguish between different eras and generations of feminism.

 

It’s not a perfect metaphor. “The wave metaphor tends to have built into it an important metaphorical implication that is historically misleading and not helpful politically,” argued feminist historian Linda Nicholson in 2010. “That implication is that underlying certain historical differences, there is one phenomenon, feminism, that unites gender activism in the history of the United States, and that like a wave, peaks at certain times and recedes at others. In sum, the wave metaphor suggests the idea that gender activism in the history of the United States has been for the most part unified around one set of ideas, and that set of ideas can be called feminism.”

The wave metaphor can be reductive. It can suggest that each wave of feminism is a monolith with a single unified agenda, when in fact the history of feminism is a history of different ideas in wild conflict.It can reduce each wave to a stereotype and suggest that there’s a sharp division between generations of feminism, when in fact there’s a fairly strong continuity between each wave — and since no wave is a monolith, the theories that are fashionable in one wave are often grounded in the work that someone was doing on the sidelines of a previous wave

March 17, 2020 in Legal History, Theory | Permalink | Comments (0)

Monday, March 9, 2020

New Book: Free Thinker, The Life of Helen Hamilton Gardner, the Lead Congressional Lobbyist for Women's Suffrage

Kimberly Hamlin, Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardner

A story of transgression in the face of religious ideology, a sexist scientific establishment, and political resistance to securing women’s right to vote.

 

When Ohio newspapers published the story of Alice Chenoweth’s affair with a married man, she changed her name to Helen Hamilton Gardener, moved to New York, and devoted her life to championing women’s rights and decrying the sexual double standard. She published seven books and countless essays, hobnobbed with the most interesting thinkers of her era, and was celebrated for her audacious ideas and keen wit. Opposed to piety, temperance, and conventional thinking, Gardener eventually settled in Washington, D.C., where her tireless work proved, according to her colleague Maud Wood Park, "the most potent factor" in the passage of the Nineteenth Amendment.

 

Free Thinker is the first biography of Helen Hamilton Gardener, who died as the highest-ranking woman in federal government and a national symbol of female citizenship. Hamlin exposes the racism that underpinned the women’s suffrage movement and the contradictions of Gardener’s politics. Her life sheds new light on why it was not until the passage of the 1965 Voting Rights Act that the Nineteenth Amendment became a reality for all women.

 

Celebrated in her own time but lost to history in ours, Gardener was hailed as the "Harriet Beecher Stowe of Fallen Women." Free Thinker is the story of a woman whose struggles, both personal and political, resound in today’s fight for gender and sexual equity.

March 9, 2020 in Books, Constitutional, Legal History | Permalink | Comments (0)

Friday, February 28, 2020

Conference: Women's Enfranchisement Beyond the 19th Amendment

Conference, Colorado Law, Women's Enfranchisement Beyond the 19th Amendment

 Beyond the 19th Amendment

 

The Ira C. Rothgerber Jr. Conference on Constitutional Law is an annual Byron R. White Center event that brings scholars and lawyers from across the nation to the University of Colorado Law School for a discussion on a current Constitutional law issue. Topics have included the future of national injunctions, listeners’ First Amendment rights, litigation strategies that promote Constitutional change, and Presidential interpretation of the Constitution.

The 28th Annual Ira C. Rothgerber Conference is titled "Women's Enfranchisement: Beyond the 19th Amendment", and will be held on Friday, April 3rd, 2020 from 8:30am-5:00pm in the Wolf Law Building (2450 Kittredge Loop Dr, Boulder, CO 80305). 2020 will mark the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women, and is a presidential election year with an unprecedented number of female candidates. But barriers to both political rights and social, lived equality persist, particularly for women at the intersections of race, sex, and class.  The 28th Annual Ira C. Rothgerber Conference will use the centennial to take stock of how far we’ve come—and how far we have to go—in terms of formal political enfranchisement as well as the social and economic empowerment of women more broadly.

CLE credit is available for this conference, and both breakfast and lunch will be served to attendees. 

Register Now

 

Schedule

Keynote Address: Reva Siegel (Yale Law)

PANEL 1: “Historical Perspectives on the 19th Amendment: Looking Back, Looking Forward”

Carolyn Ramsey (Colorado Law), Julie Suk (CUNY), Mary Ziegler (FSU Law), Susan Schulten (University of Denver)

PANEL 2: “Barriers to Political Representation”

Dara Strolovitch (Princeton), Atiba Ellis (Marquette Law), Bertrall Ross (Berkeley Law), Justin Levitt (Loyola Law), Ming H. Chen (Colorado Law)

PANEL 3: “Lived Equality: Beyond Formal Political Rights”

Aya Gruber (Colorado Law), Chinyere Ezie (Center for Constitutional Rights), Diana Flynn (Lambda Legal), Cary Franklin (UTexas Law), Scott Skinner-Thompson (Colorado Law) 

 

 

February 28, 2020 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Friday, February 14, 2020

Book Review of Ellen Carol DuBois, Suffrage: Women's Long Battle for the Vote

Available on Amazon

 

Book Review, How Long Did We Wait?

What if, in the years after the Civil War, the United States Congress had heeded the advice of Elizabeth Cady Stanton and Susan B. Anthony and guaranteed universal suffrage as a basic condition of citizenship—for men and women—black and white? Had the democratic franchise been vastly expanded and administered by the federal government, might modern U.S. history have taken a different turn? Would the rights of all citizens have been safer, and the integrity of elections more secure? Would communities in states across the country be better protected against voter suppression today?

 

In her compelling new history of the U.S. women’s suffrage movement, Suffrage: Women’s Long Battle for the Vote, Ellen Carol DuBois asks us to ponder these provocative questions. Yet she is clear-sighted about how intractable the argument proved to be in its time, and how remote the prospect of women’s suffrage really was in a society governed by entrenched patriarchy and states’ rights.

 

America’s pioneers of racial and gender justice shared many common values and forged deep bonds during the 1850s. Stanton and Anthony participated as anti-slavery organizers, while Frederick Douglass, Sojourner Truth, Lucretia Mott and Lucy Stone endured criticism for supporting the campaign for women’s rights that began at Seneca Falls—not just the right to vote, but also to own property and accumulate wealth, to access higher education and profitable employment, and to marry and divorce freely.

 

Such an expansive human rights vision, however, found no place in the aftermath of a bloody war to defend the union and eradicate slavery.

February 14, 2020 in Books, Constitutional, Legal History | Permalink | Comments (0)