Tuesday, October 31, 2023

The Implications of Dobbs to the Fundamental Rights of Family Privacy

Rona Kaufman Kitchen, Privacy: Pre- and Post-Dobbs, 61 Duquesne U. L. Rev. (2023)  

The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a fundamental right to familial privacy. The exact contours of that right were developed by the Court from 1923 until 2015. In 2022, with its decision in Dobbs v. Jackson Women’s Health, the Supreme Court abruptly changed course and held that the right to terminate a pregnancy is no longer part of the right to privacy previously recognized by the Court. This essay seeks to place Dobbs in the context of the Court’s family privacy cases in an effort to understand the Court’s reasoning and the impact the decision may have in the future.

October 31, 2023 in Abortion, Constitutional, Family, SCOTUS | Permalink | Comments (0)

Wednesday, October 25, 2023

Gender, Health and the Constitution Conference at the Center for Con Law at Akron

ConLaw_10-13-23

 

Con Law Conference Focuses on Gender, Health & the Constitution

The Center for Constitutional Law at The University of Akron School of Law held its annual conference on Oct. 13. This year’s theme was Gender, Health and the Constitution. The Center is one of four national resource centers established by Congress, along with Drake University, Howard University and the University of South Carolina, to support research and public education on issues of constitutional law. It includes five faculty fellows, student fellowships, a J.D. certificate program and an online journal, ConLawNOW.

“Speakers at this year’s conference all agreed on the need for attention to these issues of gender discrimination in the health care context,” said Akron Law Professor and Con Law Center Director Tracy Thomas. “The 20 featured panelists included national scholars and local practitioners in both law and medicine who provided a broad range of expertise from theoretical to practical implications.”

Those attending the conference included judges, attorneys, academics, students and members of the community interested in learning more about these emerging issues. Akron Law faculty Bernadette Bollas GenetinMike GentithesDr. George Horvath and Brant Lee moderated the panels.

The first topic was reproductive rights and the profound legal and medical changes since the U.S. Supreme Court’s invalidation of the long-recognized fundamental right to reproductive choice. Maya Manian, director of the Health Law and Policy Program at American University, recommended a new theoretical approach grounded in health justice. Dr. Allison Kreiner, medical analyst with Plakas Mannos, revealed the stark detriment of the invalidation to patients in practice. Legal scholars Naomi Cahn from the University of Virginia, Tiffany Graham from Touro Law and Sonja Sutter from George Washington University discussed applications in the contexts of minors’ rights and assisted reproduction.

 The second panel turned to the topic of gender identity. Panelists spoke about recent bans on gender-affirming care, the history and meaning of gender identity, and new laws prohibiting transgender girls from participating in sports. Noted national legal scholars speaking on gender identity included Deborah Brake from the University of Pittsburgh, Noa Ben-Asher from St. John’s University, Jennifer Bard from the University of Cincinnati, Susan Keller from Western State University and Dara Purvis from Penn State University.

 The next panel discussion focused on bias in medical science and the ways in which medical science excludes women in research, resulting in significant negative physical effects. Panelists diagnosed existing problems and suggested preventive measures. These legal experts on medical science included former Akron Law Professor Jane Moriarty, now at Duquesne University; Jennifer Oliva from Indiana University; and Aziza Ahmed from Boston University. Dr. Rachel Bracken from Northeast Ohio Medical University also presented.

The final panel of the day focused on the broader meanings and implications of medical autonomy. Professor Thomas discussed Ohio’s unique health care freedom constitutional amendment and how it might apply to reproductive freedom. Abby Moncrieff, co-director of the Health Law Center at Cleveland State University, considered the theoretical neutrality bases of medical autonomy and how they applied to several of the emerging legal issues discussed at the conference, including gender-affirming care and reproductive rights. Attorneys Marie Curry from Legal Aid and Megan Franz Oldham ’05, partner at Plakas Mannos, discussed how these issues from daily medical practice. Oldham addressed how medical malpractice claims arise when physicians discount women patient’s reported symptoms. Curry shared information about racial impacts and discrimination in pregnancy care, and alternative patient-centered approaches to redress these concerns.

 Many papers presented at the conference will be published in the Spring symposium of ConLawNOW.

October 25, 2023 in Abortion, Conferences, Constitutional, Family, Gender, Healthcare, Law schools, LGBT, Pregnancy, Race, Reproductive Rights, Science, SCOTUS, Sports | Permalink | Comments (0)

Friday, October 6, 2023

Sex Discrimination Formalism

Jessica Clarke, Sex Discrimination Formalism, Virginia L. Rev. (forthcoming 2023)

Critics of antidiscrimination law have long lamented that the Supreme Court is devoted to a shallow, formal version of equality that fails to account for substantive inequities and stands in the way of affirmative efforts to remediate systemic injustice. But these criticisms are primarily focused on the Supreme Court’s interpretations of race discrimination law. The Court’s most recent foray into statutory sex discrimination law, Bostock v. Clayton County, employed formalistic reasoning to move the law in an expansive direction, interpreting Title VII’s sex discrimination provision to prohibit discrimination against lesbian, gay, and transgender employees. Examining post-Bostock developments, this Article asks whether formal equality might have more potential to advance civil rights than previously thought. It argues that “formal equality” is not a single legal inquiry; rather, in practice, it takes the form of at least three distinct tests. These tests lead to different results in different sex discrimination controversies, such as whether it is discrimination to treat someone adversely for being bisexual or nonbinary, to single out pregnancy, menstruation, breasts, or other aspects of reproductive biology for disparate treatment, to enforce sex-specific dress codes, to exclude transgender people from restrooms consistent with their gender identities, to ban gender-affirming health care, or to restrict who can change the sex designations on their identity documents. Although no formal test neatly maps onto prevailing normative theories and sociological insights about what discrimination is, in recent cases, courts have used formal tests to achieve results consistent with those theories. This account suggests that, rather than insisting that courts adopt substantive tests, civil rights scholars might reconsider the virtues of formalism.

October 6, 2023 in LGBT, SCOTUS, Theory | Permalink | Comments (0)

Tuesday, September 26, 2023

Reconciling Domestic Violence Protections and the Second Amendment

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

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

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

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

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

Friday, September 22, 2023

Personal Responsibility Laws after Covid and Dobbs, Doubling Down on Privacy

Susan Frelich Appleton & Laura Rosenbury, Reflections on “Personal Responsibility” after COVID and Dobbs: Doubling Down on Privacy, 72 WASH. U. J.L. & POL’Y 129 (2023)

This essay uses lenses of gender, race, marriage, and work to trace understandings of “personal responsibility” in laws, policies, and conversations about public support in the United States over three time periods: (I) the pre-COVID era, from the beginning of the American “welfare state” through the start of the Trump administration; (II) the pandemic years; and (III) the present post-pandemic period. We sought to explore the possibility that COVID and the assistance programs it inspired might have reshaped the notion of personal responsibility and unsettled assumptions about privacy and dependency. In fact, a mixed picture emerges. On the one hand, the Supreme Court has rejected longstanding constitutional protection for abortion, and campaigns for “parental rights” have gained traction in several states. On the other hand, innovative forms of public support for families have appeared at state and local levels. In developing these conclusions, we highlight familiar challenges to the public/private divide while also exposing new cracks in doctrine that purports to distinguish intentional discrimination from disparate impact and to protect negative but not positive rights.

September 22, 2023 in Constitutional, Family, SCOTUS | Permalink | Comments (0)

Tuesday, September 12, 2023

The Supreme Court's Rhetoric of Motherhood

Lucy Williams, Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood, 102 N.C. L. Rev. (forthcoming 2024)  

Many scholars study Supreme Court decisions, but few are attentive to the rhetoric the Court uses to articulate its holdings. This omission is perplexing: The Court’s rhetoric literally becomes law, but scholars typically fixate on the substance, rather than the rhetoric, of its communications. In this paper, I argue that legal scholars should take more seriously the Court’s role as a rhetorical actor. To illustrate this, I analyze the rhetorical effects of the language the Court uses to describe women and mothers in three contexts: gender discrimination, immigration, and abortion. I begin describing the “inherited language” of motherhood—that is, the narratives, themes, and connotations that are traditionally associated with the idea of motherhood. I then use close readings and discourse analysis of landmark decisions in each substantive area to consider whether and how the Supreme Court engages with that inherited language.

My analysis reveals that the Court’s relationship with the inherited language of motherhood varies across contexts. In cases dealing with gender discrimination, the Court anxiously distances itself from traditional narratives about motherhood. In immigration cases, it both embraces and rejects the inherited language. And in abortion cases, its approach has shifted: Initially, the Court strongly disavowed inherited narratives, but in its most recent abortion case, Dobbs v. Jackson Women’s Health Organization, it says very little about mothers at all. My analysis also reveals that the Court’s attitude toward the inherited language of motherhood is often correlated with the substantive legal outcome in a case: In decisions that are more protective of women and their rights, the Court generally rejects the inherited language, but in decisions that are less protective of women’s legal rights, it relies on inherited narratives more frequently.

These findings illustrate why legal scholars should be more attentive to the Supreme Court’s rhetoric. The correlation between the Court’s language and substantive outcomes suggests that in some cases, the Court’s rhetorical decisions might influence or even determine its legal analysis. If that is true, then scholars who are interested in case outcomes should study the Court’s language. But the Court’s rhetoric does not just shape case outcomes; it also alters the way we understand, engage with, and view one another. When the Court uncritically invokes traditional narratives and about women and mothers, it may—for better or for worse—perpetuate and reconstitute a world where those outdated assumptions govern. When it actively distances itself from traditional narratives, as it does in gender discrimination cases and early abortion cases, it creates legal and rhetorical space for women to enact various modes of motherhood and womanhood. And when the Court ignores the inherited language of motherhood, it frames legal debates as if women’s interests are not at stake and conceal and, in doing so, obscures women’s perspectives, needs, and lived experiences. Scholars interested in the ways law shapes relationships and facilitates identity formation should pay attention to these constitutive effects.

September 12, 2023 in Abortion, Family, Gender, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, September 5, 2023

Dobbs Impact on the Constitutional Rights of Family Privacy

Rona Kaufman Kitchen, Privacy: Pre- and Post-Dobbs, 61 Duquesne L. Rev. (2023) 

The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a fundamental right to familial privacy. The exact contours of that right were developed by the Court from 1923 until 2015. In 2022, with its decision in Dobbs v. Jackson Women’s Health, the Supreme Court abruptly changed course and held that the right to terminate a pregnancy is no longer part of the right to privacy previously recognized by the Court. This essay seeks to place Dobbs in the context of the Court’s family privacy cases in an effort to understand the Court’s reasoning and the impact the decision may have in the future.

September 5, 2023 in Abortion, Constitutional, Family, SCOTUS | Permalink | Comments (0)

Wednesday, August 23, 2023

SCOTUS Viewpoint Distinctions in Favor of Anti-LGBTQ Speech

Carlos Ball, First Amendment Exemptions for Some, 137 Harvard L. Rev. Forum (forthcoming 2023)  

This Essay argues that the Supreme Court’s assessment of what it understood to be the sincerity and reasonableness of the business owner’s beliefs in 303 Creative LLC v. Elenis played a crucial role in its decision to grant her a First Amendment exemption from the application of a law prohibiting public accommodations from discriminating on the basis of sexual orientation. The Essay explains how 303 Creative is only the latest instance in which conservative justices have contended that opponents of marriage rights for same-sex couples are “decent” and “fairminded people” who are not prejudiced against lesbians, gay men, and bisexuals. By leaving earlier Court precedents rejecting the notion that the First Amendment grants anti-discrimination exemptions to racist and other bigoted business owners firmly in place, 303 Creative makes clear that the sincerity and reasonableness of the claimant’s views matter. This means that the impact of 303 Creative on the enforcement of civil rights laws may be more limited than some fear. But it also means that the ruling is grounded in precisely the type of governmental distinction on the basis of speakers’ viewpoints that the Free Speech Clause prohibits.

August 23, 2023 in Constitutional, LGBT, SCOTUS | Permalink | Comments (0)

SCOTUS Viewpoint Distinctions in Favor of Anti-LGBTQ Speech

Carlos Ball, First Amendment Exemptions for Some, 137 Harvard L. Rev. Forum (forthcoming 2023)  

This Essay argues that the Supreme Court’s assessment of what it understood to be the sincerity and reasonableness of the business owner’s beliefs in 303 Creative LLC v. Elenis played a crucial role in its decision to grant her a First Amendment exemption from the application of a law prohibiting public accommodations from discriminating on the basis of sexual orientation. The Essay explains how 303 Creative is only the latest instance in which conservative justices have contended that opponents of marriage rights for same-sex couples are “decent” and “fairminded people” who are not prejudiced against lesbians, gay men, and bisexuals. By leaving earlier Court precedents rejecting the notion that the First Amendment grants anti-discrimination exemptions to racist and other bigoted business owners firmly in place, 303 Creative makes clear that the sincerity and reasonableness of the claimant’s views matter. This means that the impact of 303 Creative on the enforcement of civil rights laws may be more limited than some fear. But it also means that the ruling is grounded in precisely the type of governmental distinction on the basis of speakers’ viewpoints that the Free Speech Clause prohibits.

August 23, 2023 in Constitutional, LGBT, SCOTUS | Permalink | Comments (0)

Tuesday, July 25, 2023

The Roberts Court's Jurisprudence of Masculinity

Melissa Murray, Children of Men: The Roberts Court's Jurisprudence of Masculinity, 60 Hous. L. Rev. 799 (2023).

Focusing on DobbsNew York State Rifle & Pistol Ass’n, Inc. v. Bruen, and Kennedy v. Bremerton School District, three landmark cases, this Address sketches the contours of the jurisprudence of masculinity. As it argues, the jurisprudence of masculinity evinces a striking solicitude for constitutional rights that are associated with men and masculinity while exhibiting disdain for and disinterest in rights that traditionally have been associated with women. On this account, rights to free exercise of religion, speech, and guns are preferred and prioritized, while other fundamental rights, including the right of privacy and the right to abortion, are discredited or discarded entirely.

Critically, the jurisprudence of masculinity goes beyond prioritizing the rights of men. The jurisprudence of masculinity recasts the legal landscape to ensure maximum solicitude for the protection of men and the exercise of men’s rights. Specifically, it reorganizes the traditional public–private divide to insulate men’s bodies from the imposition of state regulation, it recasts women’s bodies in terms that make them particularly susceptible and well-suited to public regulation, and it recharacterizes the relationship between the state, rights, and regulation.

The Roberts Court’s commitment to cultivating a jurisprudence of masculinity is inextricably intertwined with its selective commitment to originalism. By its own terms, originalism focuses constitutional interpretation and meaning on certain key historical moments. But tellingly, those constitutional moments on which the Roberts Court frequently relies are moments in which women and people of color were expressly excluded from political participation and deliberation

July 25, 2023 in Constitutional, Masculinities, SCOTUS, Theory | Permalink | Comments (0)

Wednesday, July 12, 2023

SCOTUS to Hear Major Guns Case Involving Domestic Violence

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

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

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

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

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

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

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

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

SCOTUS is Really Considering Whether Domestic Abusers Should Have Guns

SCOTUS is Really Considering Whether Domestic Abusers Should have Guns, Slate

So let’s be clear: the U.S. Supreme Court decision last week to consider the case of United States v. Rahimi, determining whether someone with a history of domestic violence may own a gun, is about far more than domestic abuse and its victims. It’s about America’s national security. Our national security.***

Then last February, the U.S. 5th Circuit reversed the decision, based on new Supreme Court rulings that expanded rights to gun ownership to those “consistent with the Nation’s historical tradition of firearm regulation.” Since the Founding Fathers hadn’t specifically mentioned domestic violence, they argued, alleged domestic abusers should be free to own the weapons of their choice.

In response, the Biden administration objected, noting that historically, government has refused arms to people who pose a public danger.

So now it is up to the Supreme Court . . . to decide. It is also the same Supreme Court that has loosened gun restrictions already, and that so mercilessly overturned Roe v. Wade, putting the lives of countless American women at risk.

But the point is not the women, or that two-thirds of women killed by a partner are murdered by gun—nearly two every day in America, or that, according to the Educational Fund to Stop Gun Violence, “a woman is five times more likely to be murdered when her abuser has access to guns.”

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

Tuesday, July 11, 2023

SCOTUS Ruling on Online Harassment Outrages Advocates

I have to say, I agree with Justice Amy Coney Barrett's dissent on this one. Threats are not protected speech. Period.

Wash Post, Supreme Court Harassment Ruling on Online Harassment Outrages Victims, Advocates

On Wednesday, victims of that harassment and their advocates reacted with dismay at the court’s 7-2 ruling, written by Justice Elena Kagan, that found that while true threats of violence aren’t protected by the First Amendment, other harassing online speech is, unless prosecutors prove a defendant acted recklessly and “disregarded a substantial risk that his communications would be viewed as threatening violence.”

“The majority of the court simply can’t even imagine what stalking is like,” said Mary Anne Franks, a professor of law at the University of Miami, who filed an amicus brief on behalf of the victim in the Supreme Court case. “They have no idea about the terror these victims are living in.”

 

July 11, 2023 in Constitutional, SCOTUS, Violence Against Women | Permalink | Comments (0)

The Supreme Court Just Legalized Stalking

Mary Anne Franks, The Supreme Court Just Legalized Stalking, Slate

The Supreme Court majority describes its holding last week in Counterman v. Colorado as a vindication of the First Amendment and a principled defense of free speech. Indeed, influential civil libertarian organizations were quick to celebrate the decision. ACLU attorney Brian Hauss praised the court for guaranteeing that “inadvertently threatening speech cannot be criminalized” and for “provid[ing] essential breathing room for public debate.” ***

To be clear, the “freedom of speech” protected by the Counterman majority and valorized by civil libertarian organizations is the freedom to engage in objectively terrifying conduct that leads victims to withdraw from their professions, censor their communications, and restrict their movements. Given that the majority of stalkers are male and the majority of stalking victims are female, the thrust of the opinion can be put more bluntly: The First Amendment does not protect “speech,” but men’s speech at the expense of women’s speech; men’s delusions at the expense of women’s lives.

July 11, 2023 in Constitutional, Media, SCOTUS, Violence Against Women | Permalink | Comments (0)

In Counterman v Colorado SCOTUS Justices Show Dismissal of Victims' Harms from Stalking

Mary Anne Franks, Chief Justice Roberts' Mocker of Stalking Victims Points to a Deeper Problem, Slate

Stalking is so closely correlated with lethal violence that experts refer to it as “slow motion homicide”: More than half of all female homicide victims in the U.S. were stalked before they were killed. Despite the terrifying and dangerous consequences, many victims of stalking do not report the abuse to law enforcement for fear they will not be taken seriously.

The reasonableness of that fear was vividly illustrated by the Supreme Court oral arguments in Counterman v. Colorado on Wednesday morning, as members of the highest court of the land joked about messages sent by a stalker to his victim, bemoaned the increasing “hypersensitivity” of society, and brushed aside consideration of the actual harm of stalking to focus on the potential harm of stalking laws.***

The justices’ message was clear: Stalking is not the problem; sensitivity is. To them, stalking is quite literally a state of mind: If the stalker didn’t mean for his conduct to be frightening, then it isn’t. All the target has to do is understand that; she just needs to lighten up, take a joke, accept the compliment, grasp the lesson. Just because someone has made objectively terrifying statements is no reason to overreact and get law enforcement involved; victims should wait for the stalker to do something really frightening before they jump to conclusions.***

The court’s discussion was so disconnected from the reality of stalking, so contemptuous of the victims targeted by it, and so awkwardly punctuated with culture-war buzzwords with no obvious bearing to the topic at hand, that it was sometimes hard to believe it was taking place within the Supreme Court and not a Fox News talk show. Perhaps nothing else could be expected from a far-right dominated court that has made its hostility to women and racial minorities abundantly clear. But the progressive justices did little to push back against the chief justice’s snickering tone, or to critique these efforts to turn an oral argument about stalking into a referendum on the supposed crisis of “hypersensitivity.”

July 11, 2023 in Constitutional, Judges, Media, SCOTUS, Violence Against Women | Permalink | Comments (0)

Wednesday, June 28, 2023

SCOTUS Won't Hear Case of Charter School Requiring Girls to Wear Skirts

Wash Post, Supreme Court Won't Hear Charter School's Bid to Force Girls to Wear Skirts

The Supreme Court on Monday declined to review the case of a North Carolina charter school that wanted to force female students to wear skirts in the name of “chivalry,” letting stand a lower-court ruling that deemed the policy unconstitutional.

The move is a victory for civil liberties advocates and a blow to social conservatives who hoped that — after allowing public vouchers to be used at religious schools last year — the top U.S. court would exempt charter schools from constitutional protections. The case could have had far-reaching implications for charter schools, which operate in a gray area, functioning as public schools that are run by private organizations.***

Only public institutions can be sued for violating constitutional rights — which protect students from discrimination, censorship and being thrown out of school without a hearing. The high court has ruled that students cannot be forced to recite the Pledge of Allegiance, that undocumented students have the right to attend school, and that all students, regardless of race, have the right to an equal education.

The appellate court looked at the particulars of North Carolina’s charter school system, noting that state law explicitly describes charters as public schools open to all students, holds them to state board of education standards and gives charter school employees government benefits. Ninety-five percent of Charter Day’s funding comes from public sources, the court noted.

June 28, 2023 in Education, Gender, SCOTUS | Permalink | Comments (0)

Thursday, June 1, 2023

SCOTUS Unwed Parents Cases Retain Anachronistic Gendered Hierarchies as a Matter of Constitutional Law

Albertina Antognini, Unwed Parents: The Limits of Constitution, 35 J. Am. Acad. Matrim. Law. 425 (2023)

As marriage has evolved to become a more egalitarian institution in both form and substance, nonmarriage remains full of antiquated norms and gendered hierarchies. In constitutional terms, while equality and due process considerations have forged an increasingly open and equal marital relation, these gains have largely been limited to marriage. The Constitution has failed to reform nonmarriage in similar ways and, as a consequence, it continues to contain “stunningly anachronistic” laws and principles.
 
Nonmarriage is by definition broad, encompassing the many activities and statuses that take place outside of marriage. The nonmarital cases this essay addresses involve unwed parents, which constitute a small but important slice of the legal issues that arise in the nonmarital domain. The Supreme Court has had occasion to interpret the Constitution's applicability to nonmarriage in a series of cases addressing unwed fathers; these decisions range from considering whether notice ought to be provided to an unwed father as a constitutional matter before placing his biological child for adoption, to whether disparate requirements for unwed fathers and unwed mothers in transmitting citizenship violate equal protection. Throughout, the Court has repeatedly upheld dissimilar treatment where it finds the existence of “real” differences between men and women. Reasoning from the “fact of conception” and “proof” of paternity, the Court has consistently concluded that men and women are not “similarly situated” when it comes to their roles as mothers and fathers. These facts that purportedly distinguish mothers from fathers as a general matter, gain legal significance only outside of the status of marriage.
 
The most recent of the unwed fathers cases, decided in 2017, is Sessions v. Morales-Santana. In an opinion authored by Justice Ginsburg, the Court struck down the different residency lengths required of unwed mothers and unwed fathers prior to transmitting citizenship to their children. The decision has been lauded for eliminating one of the few remaining facial sex-based distinctions, and criticized for the remedy it issued in response. This essay does neither. Instead, it argues that Morales-Santana signals a clear break from the unwed fathers cases by identifying the role that law plays in constructing what had previously been presented as unassailable fact. This essay engages in a close reading of Morales-Santana to show exactly how the Court exposes a set of ostensibly factual observations as legal judgments that rely on outdated notions of fathers and mothers, and which continue to prop up laws that differentiate between parents on the basis of sex to this day.
 
To be sure, analyzing the Court's reasoning is not necessarily important as a matter of predicting what the Court will do in future cases addressing the constitutional rights of nonmarital families - that has been largely pre-determined by the Court's most recent appointees. The opinion is also, in many ways, dated, part of a different legal landscape, one in which women and pregnant persons had more rights - to equality, to dignity, to bodily autonomy. The point of this essay then is to reveal the mechanisms by which value judgments become hardened into constitutional axioms in order to recover them as contingent, and therefore contestable, opinions. The nonmarital cases exist in the register of indisputable observation, yet they are based on archaic beliefs about the abilities of men and women that reflect, and continue to reproduce, gender inequality

June 1, 2023 in Constitutional, Family, Gender, SCOTUS | Permalink | Comments (0)

Thursday, May 25, 2023

The Limited Effect of SCOTUS' Decision in Sessions v. Morales-Santana Five Years Later

John Vlahoplus, Sessions v. Morales-Santana, Five Years On, Charleston Law Review (Forthcoming)

The Supreme Court’s 2017 decision in Sessions v. Morales-Santana was a landmark victory for equality over congressional power. For the first time the Court invoked equal protection principles to invalidate a citizenship statute despite Congress’s near-plenary power over immigration and naturalization. The Court’s remedy disappointed Morales-Santana, however. Rather than level up by recognizing that he acquired derivative citizenship as of birth from his unwed citizen father, the Court leveled down by striking a more favorable rule granting derivative citizenship at birth to children of unwed citizen mothers. Commentators recognized that the Court’s brief opinion left many questions open and that only subsequent developments would reveal whether or how it might affect equal protection and plenary power doctrines.

This essay examines the first five years of developments. It shows that Morales-Santana has had a significant but limited impact. Courts have relied on it to level up in citizenship litigation, to adjudicate claims of post-natal citizenship, and to secure some rights of non-traditional families and family members. Nevertheless, the majority’s insistence that contemporary evaluation governs equal protection analysis has not informed the development of gender-based equal protection more broadly. Courts continue to accept older precedents and rationalizations of gender discrimination at face value. An equal protection principle strong enough to defeat congressional power in an area as important as citizenship has failed to eliminate gender discrimination in other important areas like parental rights.

The essay also analyzes constitutional issues relating to citizenship and plenary power that the majority opinion glosses over, outlines defenses against potential circumvention, and identifies areas for further development that remain despite—or perhaps because of—the majority opinion’s theoretical uncertainties. How courts will continue to apply the decision in citizenship, immigration, and other cases remains to be seen.

May 25, 2023 in Constitutional, Gender, SCOTUS | Permalink | Comments (0)

Wednesday, May 17, 2023

Dobbs, Plessy, and the New Jane Crow

Evan D. Bernick, Dobbs, Plessy, and the Constitution of the New Jane Crow,  Northern Illinois U. Law Rev. (2023)

Women and girls enter U.S. jails and prisons every year. Nearly a million are on probation, parole, or pretrial release. This carceral control is unevenly distributed, being primarily exercised over poor women of color. And it is growing. These realities are part of what has been conceptualized as “the New Jane Crow.”

This Essay contends that Dobbs v. Jackson Women’s Health Org. gives the New Jane Crow the U.S. Supreme Court’s constitutional blessing. In justifying its decision to overrule Roe v. Wade and hold that the Fourteenth Amendment does not protect the right to terminate a pregnancy, Dobbs invokes Plessy v. Ferguson and its overruling by Brown v. Board of Education. The profound evil of Plessy’s constitutional endorsement of “separate but equal” railcars and its legitimation of Jim Crow segregation is said to illustrate the importance of overruling egregiously wrong precedents. But Justice Samuel Alito’s opinion for the Court in Dobbs has more in common with Plessy than its author recognizes.

Part I provides an overview of the New Jane Crow, tracing the genealogy of the phrase and describing the phenomenon that it names. Though provocative, I argue that the phrase fits the phenomenon, given substantive and functional continuities between state control of female reproduction past and present. Part II describes how Dobbs constitutionally legitimates key components of the New Jane Crow and encourages its expansion.

Part III analogizes Dobbs to Plessy in three respects. First, in its disregard of relevant history. Second, in its lack of attention to present socioeconomic realities. Third, in its capacity to provide constitutional legitimation to an entire political-economic order that perpetuates racialized and gendered subordination.

May 17, 2023 in Abortion, Constitutional, Poverty, Pregnancy, Race, SCOTUS | Permalink | Comments (0)

Friday, May 5, 2023

Architect of Roe's Demise Argues SCOTUS History and Tradition Test is Wrong and Distinguishes Other Substantive Due Process Rights

The architect of Roe's demise argues that the Supreme Court's history and tradition test is wrong and distinguishes other substantive due process rights.

Jonathan Mitchell, Why Was Roe v. Wade Wrong?, forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)

The conventional critique of Roe v. Wade is both undertheorized and unsatisfying. Critics of Roe—such as John Hart Ely and Justice Scalia—have hammered the Court’s opinion for recognizing a supposed right to abortion that lacks a clear textual foundation in the Constitution’s language. Yet Roe was hardly the first time that the Supreme Court imposed a constitutional right that lacks textual support—and it is not immediately apparent what makes Roe more egregious than the other court-created rights that have won broad acceptance across the political and jurisprudential spectrum. Roe’s critics have tried to respond to this challenge by invoking a history-and-tradition test for distinguishing the “good” substantive-due-process rights from the “bad” ones. Yet there are many problems with using history and tradition as the touchstone for unenumerated constitutional rights. One problem is that the history-and-tradition test does nothing to salvage the constitutional holdings of Griswold v. Connecticut, which recognized a right to contraception, and Loving v. Virginia, which established a right to interracial marriage. There are also many unenumerated rights that are “deeply rooted in this Nation’s history and tradition” yet have never been recognized as constitutional entitlements by the Supreme Court. And the history-and-tradition test has no account for why traditional rights and practices should be entrenched as constitutional mandates when they were never formally incorporated into constitutional text.

Rather than rely on a history-and-tradition test to distinguish Roe from other substantive-due-process rulings, the Court should instead ask whether the unenumerated rights that it has recognized can find textual support in other sources of supreme federal law, such as federal statutes and agency rules. And it should, when possible, invoke those extra-constitutional legal authorities to support the correctness of those substantive-due-process rulings or (at the very least) to rebuff efforts to overrule them. Many (though not all) of the rights that the Supreme Court has imposed under the rubric of substantive due process or equal protection are independently protected by non-constitutional sources of federal law. And that is all that is needed to distinguish those cases from Roe, which has never been codified as a federally protected right—and it explains why the Roe regime can and should be regarded as uniquely indefensible and an improper imposition of judge-held preferences.

May 5, 2023 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)