Category: Civil Rights

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FAN 194.4 (First Amendment News) John Paul Schnapper-Casteras Responds to Seidman’s “Can Free Speech Be Progressive?”

News item: Wendy Kaminer, The ACLU Retreats From Free Expression — The organization declares that speech it doesn’t like can ‘inflict serious harms’ and ‘impede progress,’ Wall Street Journal, June 20, 2018

_____________

John Paul Schnapper-Casteras

Seidman underplays the crucial importance of First Amendment principles to the civil rights movement and the practice of protesting. The twentieth century is replete with examples of how activists, authors, and attorneys can spark meaningful and lasting change—on both sides of the aisle. — John Paul Schnapper-Casteras

The online dialogue continues over at First Amendment Watch with today’s posting of John Schnapper-Casteras’  response to Michael Seidman’s “Can Free Speech be Progressive?

Additional posts will appear at the start of next week:

Monday, June 25:                      Jane Bambauer
Tuesday, June 26:                     Ronald R.K. Collins
Wednesday, June 27:              Richard Delgado
Thursday, June 28:                  Mike Seidman:  Rejoinder
Friday, June 29 onward:        Reader responses
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FAN 188 (First Amendment News)UW law profs release letter re applicable law governing security fees on college campuses

The protections of the First Amendment are not limited to liberals, or conservatives, or people with good ideas.The principle at issue here is not a new one. Time and again, during the difficult days of the civil rights movement, the courts held that the government cannot limit or burden speech because it is likely to provoke others to attack a speaker or his or her supporters. It was that principle that protected James Edwards when he marched to the state capitol in Columbia, South Carolina, the Reverend B. Elton Cox when he marched to the state capitol in Baton Rouge Louisiana, John Lewis when he marched to Montgomery, Alabama, Dick Gregory when he marched to the home of Mayor Daley in Chicago Illinois, and Charles Evers and Henry Aaron when they wanted to speak at the University of Mississippi and Mississippi State. However much Mr. Gibson’s views may differ from those of the civil rights heroes who established this principle, the College Republicans are entitled to invoke that same principle when he speaks at the University of Washington. — UW Law Professors’ Letter 

Skirmish at UW Patriot Prayer event (credit: Oregon.live)

The letter below was endorsed by members of the faculty of the Universty of Washington School of Law and was submitted to the President of the University, Ana Mari Cauce. The controversy that prompted the letter involved the University’s attempt to impose a fee of at least $17,000 on the College Republicans, this in connection with an event hosted by them on February 10, 2018. The group invited  Joey Gibson, a controversial speaker who heads an organization known as Patriot Prayer, to speak on that date. 

The University of Washington now plans to change its protocol regarding student-hosted events so that student organizations will not be charged for any security measures needed to protect the students, an invited speaker, or other guests from counter-protesters.

I thought this letter, prepared largely by Professor Eric Schnapper and endorsed by 22 others (including myself), was sufficiently important to post it in its entirety, including endnotes. The letter makes a strong case for First Amendment protection. Equally important, it also reveals how in the past First Amendment law was invoked to protect minority rights in contexts where unruly individuals or crowds sought to silence civil rights demonstrators or where fines or fees were imposed on civil rights groups.  

Finally, the UW Law letter provides an informative guide to much of the existing law concerning free speech rights and security fees. In that regard, it should be useful to college administrators, lawyers representing colleges, lawyers representing students and speakers, and to student organizations in general, among others.

* * * * * * 

April 4, 2018

Dear President Cauce:

President Ana Mari Cauce

We write to urge modification of the policy of the University of Washington regarding the imposition of fees for security measures taken in connection with events on campus.  As now written, the policy provides that the fee charged to a student group or other host can be based in part on the security measures needed to protect that host organization, or its guests, from possible attack by opponents who object to the views of the organization or of a speaker invited by that organization.[1]  The University is currently seeking to impose a fee of at least $17,000 on the College Republicans, in connection with an event hosted by that group on February 10, 2018, at which the invited speaker was Mr. Joey Gibson, who is the head of an organization called Patriot Prayer.  The constitutionality of that proposed fee is currently the subject of litigation pending in federal district court, and that court has already made a preliminary determination that the University’s policy is likely to be held unconstitutional.

We concur in the federal court’s preliminary determination and strongly urge you to voluntarily modify the University’s policy rather than litigating this matter further.  Specifically, we recommend that you modify the policy to preclude the imposition of any fee for security measures taken to protect a host organization, or its guests, from the hostility of others who may disagree with their views. Consistent with such a change in policy, we believe you should withdraw the pending request for reimbursement by the College Republicans insofar as it is based on such security measures.  Our views on this matter do not reflect any agreement with the views of Mr. Gibson, or with the decision to invite him to speak on campus. Below, we explain why we believe that this request is justified by law and the interests of the university.

(1) Supreme Court Jurisprudence

Professor Eric Schnapper (credit: Oyez)

The First Amendment standards applicable to this situation were established by the Supreme Court decision in Forsyth County, Georgia v. Nationalist Movement. [2]  Forsyth County, a primarily rural county near Atlanta, had a particularly troubling racial history.  In 1912 the entire African-American population was driven from the county; 75 years later the population remained 99% white.   In January 1987, Hosea Williams, an Atlanta city councilman and longtime civil rights leader, attempted to march with 90 civil rights demonstrators in the county seat.  They were met by some 400 counterdemonstrators, including members of the Ku Klux Klan, who shouted racial slogans and forced the parade to a premature halt by throwing rocks and beer bottles. Williams organized a return march the next weekend.  It developed into the largest civil rights demonstration in the South since the 1960’s. On January 24, approximately 20,000 marchers joined civil rights leaders, United States Senators, and an Assistant United States Attorney General in a parade and rally.  The 1,000 counter-demonstrators on the parade route were contained by more than 3,000 state and local police and National Guardsmen.

The actions taken to protect the demonstrators cost over $670,000.[3]  Three days after the second demonstration, “[a]s a direct result” of the demonstrations, the Forsyth County Board of Commissioners adopted an ordinance providing that individuals participating in demonstrations would be required to pay for the cost of protecting them from others.  The amount of the fee was to be based on “the expense incident to . . . the maintenance of public order in the matter . . . .”[4]   The amount of the fee was later capped at $1,000.

Several years later, The Nationalist Movement proposed to hold a demonstration in Forsyth County in opposition to the federal holiday commemorating the birthday of Dr. Martin Luther King, Jr.  The county described The Nationalist Movement as “a white supremacist group.”[5]   The county imposed a fee of $100.  The Movement did not pay the fee or hold the demonstration; instead, it filed suit challenging the constitutionality of the county ordinance.

When the litigation reached the Supreme Court, briefs in support of The Nationalist Movement were filed by a number of organizations which clearly disagreed with the racial views of the Movement.  They argued that it is unconstitutional to require speakers or groups to pay for the cost of protecting them from individuals who object to their views.  The ACLU, in a brief joined by People for the American Way, pointed out that

[t]he most predictable result of a rule assessing the speaker for the cost of controlling hostile onlookers would be to silence the speaker.  Furthermore, the likelihood of that result will only encourage counterdemonstrators to escalate their threats of violence.  The greater their threatened unlawfulness, the greater the cost to the speaker, and the less likely it is that the speech will ever take place.[6]

Joey Gibson (credit: The Columbian)

The AFL-CIO, in a separate brief, urged that “[a] government-imposed fee . . . that increases as the content of the proposed speech becomes more controversial . . . contravenes the basic principle underlying the proscriptions on content-based economic burdens on speech . . . .”[7]

The Supreme Court held that the Forsyth County ordinance was unconstitutional because the amount of a fee charged for a demonstration or parade permit was greater if the views of those participating were so unpopular that they required police protection.  “[T]he Court’s . . . First Amendment jurisprudence . . . do[es] not . . . permit”  “charging a premium in the case of a controversial political message delivered before a hostile audience.”[8]  “[T]he costs . . . are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation.”[9]  “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”[10]

The Supreme Court decision in Forsyth County rested in part on a long line of Supreme Court decisions holding that the First Amendment rights of civil rights demonstrators may not be curtailed on the ground that the expression of those views angered white onlookers.  “It is only necessary to look back a score of years in our history to find a situation in which speakers who advocated racial equality were denied their freedom of expression because of the angry response of a segment of the community to their message.”[11]  Those earlier Supreme Court opinions establish that the constitutional right of free speech cannot be vetoed by the use or threat of violence by an angry heckler. Three examples make this point.

— First, in Edwards v. South Carolina[12], the Supreme Court overturned the breach of the peace convictions of James Edwards and a group of high school and college students who had marched peacefully to the state capitol in Columbia to protest racial discrimination in the state. The demonstrators carried signs proclaiming “Down with segregation” and sang “We Shall Overcome.”  Police officials objected that the demonstration risked provoking hostile whites[13], and arrested the demonstrators when they refused to disperse.  The Court held that the First Amendment did not permit convicting the demonstrators on the ground that “the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection”[14]The state law was unconstitutional as applied because it permitted a conviction merely because speech “stirred people to anger . . . or brought about a condition of unrest.”[15]

— In Cox v. Louisiana[16], the Court overturned the breach of the peace conviction of the Reverend B. Elton Cox, a Field Secretary of the Congress of Racial Equality, who led a march of students from Southern University to the state capitol in Baton Rouge, Louisiana.  The protesters were objecting to the arrest of twenty-three fellow students who had been jailed for picketing stores in Baton Rouge that maintained segregated lunch counters.  At the end of the demonstration, Cox urged the demonstrators to seek service at segregated counters.  “The Sheriff . . . deem[ed] . . . Cox’s appeal to the students to sit in at the lunch counters to be ‘inflammatory’ . . . .”[17]  Police ordered the students to disperse and fired tear gas when the students did not leave at once; Cox was subsequently arrested.  The state sought to justify prosecuting Cox on the ground that his actions created a risk that he and the other demonstrators would be attacked by angry white onlookers.[18]  The Court held that Louisiana could not punish Cox “merely for peacefully expressing unpopular views” on the ground that his statement might “occasion” “a breach of the peace.”[19]

— Finally, in Gregory v. City of Chicago, a group of demonstrators led by Dick Gregory “marched in a peaceful and orderly process from city hall to the mayor’s residence to press their claims for desegregation of the public schools.”[20]  Gregory told marchers, “If anyone hits you or anything, try to remember what they look like, but above all means, do not hit them back.”[21]Gregory other marchers were convicted of disorderly conduct because they had provoked an angry response by white onlookers.[22]  The Supreme Court reversed, explaining that peaceful demonstrators could not be punished merely because hostile onlookers became violent.[23]  The constitutional problem, one Justice explained, was that it was “entirely possible that the jury convicted the [defendants]on the ground that Gregory and the others who demonstrated with him . . . simply because the form of their protest displeased some of the onlookers.”[24]

                       Video by David Neiwert (credit: Southern Poverty Law Center)

Edwards, Cox, and Gregory are, in turn, part of a larger and long line of Supreme Court decisions holding that constitutional rights cannot be curtailed because of the danger of violent opposition.  In the fall of 1957, a federal court ordered the admission of nine African-American students to Central High School in Little Rock.  When the students arrived on September 23, 1957, a mob of angry whites besieged the school; local police officers, unable (or perhaps unwilling) to control the crowd, decided to remove the African-American students from the school. Two days later, the President of the United States dispatched federal troops to Little Rock High School to protect the African-American students; the troops were later replaced by federalized National Guardsmen, who remained in the school protecting those students throughout the remainder of the school year. In early 1958, school officials asked the federal court to suspend desegregation of Little Rock High School because of that vehement public opposition.[25] Read More

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Deputy A.G. Rod Rosenstein to be interviewed at Newesum on May 1st, Law Day — Public invited

Newseum, Wash., D.C.

A Law Day Conversation With Rod Rosenstein, Deputy Attorney General of the United States
Tuesday, May 1, 2018 / 2:00 p.m.
Newseum, Walter and Leonore Annenberg Theater, Washington, D.C.

To commemorate Law Day, the Newseum Institute presents a special program featuring Rod Rosenstein, deputy attorney general of the United States, in a wide-ranging discussion on the rule of law, the First Amendment and the mission of the Department of Justice.

The conversation will be moderated by Ronald Collins, a constitutional law and First Amendment expert and the Harold S. Shefelman Scholar at the University of Washington School of Law.

Deputy AG Rod Rosenstein

Rosenstein was sworn in as the 37th Deputy Attorney General of the United States on April 26, 2017, and has served in the Department of Justice for nearly three decades under several presidents and attorneys general.

Law Day is held on May 1 every year to celebrate the role of law in our society and to cultivate a deeper understanding of the legal profession.

Register here (no admission charge) 4-18-18: SOLD OUT 

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New Op-ed by Donna Lenhoff: Major reforms needed to make the “Me Too Movement” viable

Over the past few months, the #MeToo movement has exposed an epidemic of sexual harassment and retaliation in the workplace. But without substantial reforms to our legal system, that movement may be all for naught.

So begins an important new op-ed in today’s Washington Post.  The piece is titled: The #MeToo movement will be in vain if we don’t make these changes.

Donna Lenhoff

The author is Donna Lenhoff (more about her in a moment). This op-ed brings to the forefront legal issues central to the success of the “Me Too Movement.”

“What has become all too clear,” writes Lenhoff, “is that [Title VII and the mechanisms for enforcing it] — designed decades ago to redress and deter harassment and retaliation — are woefully inadequate, for four significant reasons.”

  1. First, while the threat of large damages can be effective in getting management to take preventive action, under Title VII, pain-and-suffering and punitive damages combined are capped. . . “
  2. “Second, many companies insist that harassment settlements be confidential. . . .”
  3. “Third, the agencies that enforce Title VII have never had the necessary resources . .  .”
  4. “Fourth, private litigation is quite rare considering the prevalence of workplace harassment. . . .”

There is more, much more, but you’ll have to read the entire op-ed. Suffice it to say that Lenhoff’s no-nonsense brand of progressive thinking is needed if real change is to occur.

Meanwhile, here is some info about Donna Lenhoff:

Lenhoff has worked for strong enforcement of laws against workplace discrimination from both inside and outside the federal government.  She served as Senior Civil Rights Advisor in the U.S. Labor Department’s Office of Federal Contract Compliance Programs during the Obama Administration, where she was responsible for updating 35+-year-old sex-discrimination regulations. 

As a staff attorney at the then-Women’s Legal Defense Fund, she was the first person to testify in Congress about sexual harassment. 

She lobbied for EEOC Guidelines on harassment and oversaw women’s groups’ amicus briefs in every major Supreme Court case involving harassment from 1978 to 2000. 

Lenhoff also lobbied for legislative changes to strengthen civil-rights and labor laws that help workers, including the 1991 Civil Rights Act, and led the coalition that advocated for the Family and Medical Leave Act of 1993. 

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FAN 168.1 (First Amendment News) Prof. Alan Morrison Weighs in on Facts Issue in Cake Case

Earlier today I posted an issue of First Amendment News entited Resolution of wedding cake case — is it all about fashioning the facts?

In resposne to that, Professor Alan Morrison wrote to me inquiring how the factual dispute in the case might play out in the future, and then he raised this question: “Will this end up being a case in which parties can determine outcomes in the future by tailoring their speech and response?” Intrigued by that question, I invited Alan to elaborate. His comments are set out below. For the benefit of the reader, I have reinserted my five scenarios since Alan referenced them.

* * * * 

Ron Collins raises the interesting question of whether the facts in Masterpiece Cake case may play a very significant role in the outcome, based on which of (at least) his five scenarios  (dare I say “alternative facts”) the Court accepts. Presenting these alternative scenarios raises several thoughts that may be worth considering.

* * * * 

Scenario # 1: Gay couple walks into Christian bakery and attempts to buy a generic wedding cake from refrigerator display. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 2: Gay couple walks into Christian bakery and orders a generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 3:  Gay couple walks into Christian bakery and asks if they design cakes for same sex couples. Owner says no. Couple then attempts to buy generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 4: Gay couple walks into Christian bakery and orders a generic wedding cake. They then ask to purchase  two grooms to place on the cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

Scenario # 5: Gay couple walks into Christian bakery and asks if they will create and design a wedding cake for them. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).

* * * * 

Prof. Alan Morrison (credit: GW Today_

It appears that the exchange between the buyers and the seller that gave rise to this case was very brief and was almost surely not carried out with the legal issue now before the Court in the minds of anyone.  From what I have read, the alternatives Ron discusses were not fleshed out in this exchange and so what each party now says it wanted may have no bearing on what, if anything, was going through their minds at the time.  To add to the uncertainty, the exchange was so brief, and perhaps infused with emotion on both sides, that any nuances now suggested were either not picked up or lost in the moment.

If the Court’s decision turns on which scenario it accepts as what actually happened, how much confidence should we have that the Court’s “facts” will be the “real” facts — whatever that means?  The only saving grace is that the remedy ordered does not include money damages and any injunction that is upheld is likely to be quite targetted, which brings me to my next thought.
Despite its emotional importance, this decision is likely to be of only modest significance, unless the Court takes an extreme position one way or the other. Suppose the Court says that artistic cake making is protected, but only if the baker is clear that this is a very limited exception. And assume further that cake makers — and perhaps florists and photographers — get the word and now know what they must say, and may not say, if they want to honor their consciences and avoid liability.  My hunch is that they will probably able to find a way to do that, and the cake buyers will still be able to get their cakes (and eat them too) in most situations.
Finally. I think (perhaps hope ) that this decision may have limited real world impact based on the fact that there are probably very few people in business who will turn away customers for reasons of conscience, not only because of the direct lost income, but because of what an adverse Internet posting may do for their business more generally.  And on the other side, will those few buyers who are turned down for reasons of conscience care enough to spend the time and money to establish a principle, or instead go to another shop that actually wants to serve them?

As a lawyer who has brought cases where the principle is as important as the benefits to the client, I applaud the buyers here for making the complaint and carrying it to the Supreme Court.  But my point is only that, once the Supreme Court speaks, there is not likely to be many follow-on cases, which is probably to the good for everyone.

Alan Morrison
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Stanley v. Illinois, Race and Gender

In yesterday’s post, I introduced the 45 year old case of Stanley v. Illinois, described what we know about the Stanley family, and introduced the idea that legal parenthood should be recognized only in parents who demonstrate a commitment of care for the child. Today, I turn to what why I think members of the Court may have believed the Stanley family was African-American and what that may have meant for the decision.

If I am right that the Court could have seen the Stanley case as involving both gender equality and racial equality, there needs to be some reason to believe that at least some members of the Court would have viewed the Stanley family as African-American. I think that reason exists.

When race is not mentioned in a society where European-Americans dominate the conversation, the observer usually assumes the parties to be white. That may or may not have been true when the justices looked at Peter Stanley, however.

Think about the confounding parts of the story. For one thing, the Stanleys had children together but they weren’t married. The Stanley children were born in the 1950s and the 1960s when non-marital childbearing was much more common among African-American families than among white families. For another thing, Joan Stanley was probably employed for wages outside the home for enough time to qualify her children for survivor benefits. At the time, relatively few white women worked outside the home, but many African American women did.

As it turns out, Peter and Joan Stanley were both European-American, a fact revealed by the 1940 Census and probably confirmed by Joan’s burial being handled by a white-owned funeral home. The Court had access to neither source of information. I think it justifiable to assume, therefore, that justices could have read the record to demonstrate that Joan Stanley is an African-American woman and Peter Stanley is an African-American man.

How could the conclusion that the Stanleys are African-American influence justices to view the case differently from a case about European-American families? I think there are at least two ways the justices might have framed the case differently. Each framing has positive and negative aspects when it comes to deciding whether to recognize legal parenthood in a parent like Peter Stanley.

First is the importance of the post-Civil War amendments to the Constitution. Professor Peggy Cooper Davis has examined how the Court could have seen the Stanley case in the context of centuries-old struggles of African-Americans for legal recognition of their family ties.  Professor Davis traces Stanley back to the post-Civil War amendments to the Constitution which were motivated, in part, by the arguments of slaves and of abolitionists about family ties. They argued that one of the worst abuses of slavery was the denial by slave-owners and the law to recognize the rights of slaves to marry and to have the legal rights of parenthood with respect to their children.

Claims about family ties were amplified during the Civil War, when innumerable slaves freed themselves. Many self-emancipated people took refuge in Federal military encampments, where they confronted camp commanders with demands for marriage ceremonies and other indicia of legal and inviolable rights to parenthood of their children. They believed that legal recognition of marriage and parenthood was one of the best ways to defeat the law and practice of slave states to empower masters to separate partners from one another and to sell children away from their parents.

That’s the positive side of the story. There’s also a negative side. Some of the camp commanders looked at the thousands of self-emancipated people in the camps and wondered how to keep them under control. Some concluded that the best way was to require cohabiting people to get married regardless of whether they wanted to. Commanders appear to have been acting out of the view, largely uncontested in the middle of the nineteenth century, that the family was a place of mini-government. That mini-government was not led by an equally-empowered pair of adults. Instead, it was led by the male head of household, the husband and father. Once a woman was married, she would be subject to the authority of her husband, and the camp commander would have fewer people to worry about.

You can see Stanley as reflecting both the positive and the negative sides of the story. Stanley gets recognition as a legal father and protection from unwarranted interference in that relationship, something that slaves never had. At the same time, men in Stanley’s position also get to exercise authority over those possibly-unruly women who bear their children, even in situations where only the mother is taking responsibility for caring for the children.

The second clue to framing possibilities is the Moynihan Report, which was published only a few years before the Stanley decision.  The positive side of the Moynihan Report is that President Lyndon Johnson commissioned it because he wanted to know how to improve the lives of African-Americans. When it was published, however, it shook many people with its claim that the prevalence of female-headed households in the African-American community precluded much of the progress toward civil rights that the Johnson administration wanted to see. The “matriarchy” of the black family was described as pathological. Many people seem to have interpreted the Moynihan report as advocating policies capable of enlarging the power of men in African-American families.

Given the apparent blessing of Daniel Patrick Moynihan, a highly visible and respected public intellectual, it’s plausible that justices who wanted to advance racial equality could have thought it wise to expand the authority of fathers with respect to their children, especially when the father is African-American. At the same time, if the court understood the decision as reducing the independence of mothers with respect to their children, that result could be justified as an appropriate way to restrict some of the power of the black matriarchy. Remember that, prior to Stanley, an unmarried woman who gave birth to a child could place the child for adoption without consulting the child’s biological father. She was also the sole legal guardian of the child. In many states, a paternity finding could result in an order for child support without empowering the unmarried father to seek custody or visitation.  After Stanley, the single father could not be deprived of the rights previously exercised solely by single mothers.

If the Court had understood the Stanleys to be European-American, I wonder if it would have heard the case. After all, if Stanley were a lower-class white man, a ruling in his favor would not be viewed as advancing a racial justice agenda. Enhancing his authority as a father relative to the power of mothers has no obvious advantage in a group where marriage before childbearing is the dominant practice, because the married father already had at least equal power with the married mother in the law. All that ruling for Stanley would do, therefore, would be to enhance legal rights affecting non-marital childbearing in a group that generally avoided the practice at the time.

Any assumptions that justices may have made about seeing the Stanleys as an African-Americans were not revealed in the decision. If some justices believed, however, that a decision in favor of Stanley advanced both racial equality and gender equality, a little more explicit attention to intersecting issues would have been a good idea, particularly when it comes to issues of power. Instead, the Court ends up, I think, embedding into the law of parenthood claims about African-American families and the need for men to control the mothers of their children.

Stanley’s legacy has been that non-marital fathers have gained power and some of that gain has come at the expense of non-marital mothers. The change is positive in the many cases where both parents are actively-engaged and committed to their children. It is also positive when the father, like Stanley, demonstrates his commitment to care for the child and the mother is unavailable or uncommitted. But where the mother is committed and the father is not, the outcome gives him a chance for control over her for the sake of a child who gains no benefit.

The negative legacy of Stanley continues to support legal claims of uninvolved fathers because the Court elevated the individual rights of Peter Stanley over considerations of the relationship that Stanley had with the children. The Court might have had reason to do so if it could not otherwise advance an agenda of racial justice, but it’s hard to make that case without buying into Moynihan’s claims that black mothers are in need of male supervision. What the Court could have done instead was to explicitly recognize the intersection of race and gender and try to deal with both in fair ways. In my view, a relationship-based approach does that by respecting and valorizing the roles that men and women play in the lives of children when they commit to caring for those children.

In my next post, I’ll discuss the negative legacy of Stanley in the context of this year’s failed attempt in Maryland to restrict the paternal rights of men when the child is born as the result of the man raping the mother.

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Stanley v. Illinois and Rapist-“Fathers”

I am delighted to return to Concurring Opinions as a guest contributor.  Many thanks to Solangel for her kind invitation.

My posts this week are about the continuing influence of Stanley v. Illinois, 45 years after it was decided.  Stanley’s legacy is positive in terms of encouraging legal recognition of men as fathers to children for whom they provide care and commitment.  The legacy also includes, however, legal recognition of men as fathers in the absence of any involvement, much less care and commitment.  This part of the legacy contributes to the empowerment of men as parents at the expense, in some cases, of the empowerment of women as parents, an ironic result given the gender equality rhetoric of the decision.

One example of the negative legacy is the ongoing controversy about whether a man should enjoy legal fatherhood when his rape of the mother resulted in her pregnancy.  Later, I’ll address that controversy in the context of the recent failure of corrective legislation in Maryland.

In my view, the negative legacy of Stanley reflects unexamined and intersecting stereotypes not only about gender but also about race.  I argue that the Justices may have assumed, without evidence and without express acknowledgement, that the Stanley family was African-American.  If that speculation is correct, the court may have been pursuing what some justices saw as a racial justice agenda along with gender equality claims.  I will address in my next post where the agenda may have led the court.

First, some background.  In 1972, the Supreme Court decided that Illinois was required to recognize Peter Stanley as a parent, even though he was not married to the mother of his children when she died.  Because Stanley, as an unmarried father, was the surviving parent, the state declared the younger Stanley children parent-less and wanted to take them into care.  According to the Court, the failure of the parents to marry was not equivalent to the evidence of neglect or abuse that would be required if the state wanted to take into care the children of a mother or a married father.  The Court concluded that unmarried fathers were entitled to recognition as parents and the same level of process accorded to all mothers and to married fathers before the state could take their children.

In a concurring opinion that I wrote for Feminist Judgments a few years ago, I agree that Peter Stanley was entitled to parental recognition.  I argued that recognition should not arise solely from Stanley’s biological connection to the children, however.  Instead, Stanley’s entitlement should be based in the level of care and commitment he had demonstrated for his children.

My concurrence reflects two strands of feminist thought.  First, many feminists emphasize that caring relationships should count for more in the law.  Second, many feminists agree that law needs to take stories into account to provide context and support reality-based law-making.  In particular, courts do a better job deciding cases when they see people’s relationships to one another as meaningful, particularly relationships of support and care.  Understanding law in the context of people’s lives, their “stories,” is equally essential.  The Stanley Court did little of either.  Instead, the Court came to a broad, abstract conclusion that all people who claim parenthood through a blood relationship, marriage or adoption are the same, regardless of what any of those people have demonstrated in terms of connection with the child.

I am not arguing that a feminist Justice would have dissented; I agree with the outcome of the case.  The record, as I will discuss, demonstrates that Peter Stanley was involved with his children, shared a household with them, and was concerned for their future.  His marital status should not be cause for depriving him of parental status; only a finding of unfitness should justify that deprivation.

Where the Court and I part company is on the question of why.  The Court justifies its rule on the basis that the father has a right to be treated the same as a mother.  In my view, the parental rights of any person, whether father or mother, should turn on whether the person has a relationship with the child that demonstrates a level of commitment to the child’s care.  Where a person with a formal claim to parenthood, whether through birth, marriage or adoption, has never exercised any commitment to the child’s care, the state should be allowed to disregard that person’s claim to parenthood.

The Court’s focus on equality strikes me as not coincidental, but I’m not sure it was solely gender equality that the justices were thinking about.  In my view, at least some of the justices saw Stanley as part of the Court’s racial justice jurisprudence.  In light of this possibility, it also seems important that members of the Court probably thought Peter Stanley and his family were African-American, as I’ll discuss later.

The case is a good example of how claims about racial justice and claims about gender justice may lead to confounding results if not understood and examined contextually.  Empowering Peter Stanley to resist state intervention into his family because of his biological attachment to the children has been interpreted over the years since as empowering all unmarried fathers to be recognized as parents.  Once recognized as a parent, these men have the opportunity to restrict the autonomy of the mothers of their children in parenting decisions such as adoption and custody.  That outcome is inconsistent with preferring involved, committed and caring parents, whether male or female, over others whose connection to a child is solely formal or biological. Ironically, that outcome is hostile, in many cases, to respecting women’s equality.  The risks may be greatest for women of color.

My conclusion is that a relationship-based approach to Stanley’s claims would not have led to a different result for Peter Stanley.  Because a relationship-based approach adds context to the question of who should be recognized as a parent, further, it would help to counter the empowerment of the uninvolved parent that has been the negative legacy of Stanley.

To understand Stanley, it helps to know something about the story of the Stanley family.  The record, however, is scanty.  Here’s what we know from the record and additional research.  Peter and Joan had a long-term relationship and may have believed they were married, although no documentation was ever uncovered.  All accounts show them living together during the last few years before Joan’s death.  For the 17 or so years before that, they lived together continuously or intermittently, depending on whose account is accepted.  Their oldest child was found to be neglected at some point before her mother died.  The two younger children were born in the last few years before Joan’s death, and they were living with Joan and Peter when she died.  We also know that Social Security survivor benefits were paid for the three children, which seems to mean that Joan Stanley earned a salary for some period of time.  Money was tight, at least after Joan’s death.

Here’s some of what the Court’s record does not reveal:  whether Joan or Peter would identify themselves as African-American or European-American, what they did for a living, whether both provided economically to the family, what led to Joan’s early demise, whether Peter cared for her during her illness, and what the oldest child experienced before or after her mother’s death.

In my next post, I’ll discuss why I think members of the Court may have regarded the Stanleys as African-American and what that may have meant to them.

 

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Symposium on Carol Sanger’s “About Abortion”: Introduction & Commentaries

What follows is an online symposium concerning Professor Carol Sanger’s latest book, About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017) (table of contents here). Links to the Introduction and Commentaries are set out below.

Related

Professor Carol Sanger

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Introduction to About Abortion Symposium

We are delighted to introduce Professor Carol Sanger and the participants in our online symposium on About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017).

Professor Sanger, in her inimitable style, updates us on the state of the abortion debate in the age of Trump.  She explains how the experiences of women who have abortions have disappeared into the shadows while those who would outlaw it control the public discourse.  She explores the explosion of hostile legislation in state legislatures, as the new laws “treat abortion not as an acceptable medical decision—let alone a right—but as something disreputable, immoral, and chosen by mistake.”  Sanger’s book captures the reasons why the discourse has changed, and how abortion, which has always been a contentious issue, drives its emotional force from its connection to underlying debates about sex, religion, gender, politics, and identity.  She nonetheless seeks to reclaim women’s perspectives on the practice of abortion.   She argues that as women become more willing to talk about their experiences, “women’s decisions about whether or not to become mothers will be treated more like those of other adults making significant personal choices.”  In short, she seeks to normalize the topic of abortion.

The book covers original material that Sanger has assembled documenting the legal infrastructure for abortion decision-making.  She presents the experiences of vulnerable teens, forced to appear before hostile judges in an effort to secure permission to proceed without parental consent.  Courts deem many of the teens too immature to make such decisions on their own, but not apparently too immature to become mothers against their will.  She also describes the women required to undergo involuntary ultrasounds, the debate about whether the women are allowed to look away, and the insidiousness of this alleged effort to “help” women make the abortion decision.

Throughout, Sanger connects these practices to law, medicine, the organization of intimate relationships, the shape of a woman’s life, and national identity.  She takes pains to present  the objections to abortion accurately even as she also counters the depiction of decisions to end pregnancies as “selfish” or casual decisions to put women’s interests ahead of their children.  She distinguishes between abortion privacy, a form of nondisclosure based on a woman’s desire to control personal information, and abortion secrecy, a woman’s defense against the many harms of disclosure.   She captures women’s varied views, whether they treat abortion as unthinkable or as a measure necessary to allow them to become “good” mothers in circumstances of their choosing.

Indeed, Sanger’s original treatment of abortion includes a chapter on the views of men.  She asks not what decisions men would make about abortion; instead, she explores how they in fact decide whether to become fathers when they are faced with the choice of what to do with their frozen embryos.  The men in such circumstances express concern over the potential child’s future welfare, distress over an ongoing relationship with the other parent, an unwillingness to consider adoption as an acceptable alternative; in short, they express the same concerns that women do about whether to proceed with a pregnancy.  Yet, the right to life forces, while they often champion the rights of frozen embryos,  do not subject the men’s decisions  to the same intrusion and vilification they reserve for women.  Sanger speculates that if the same law that governs decisions about frozen embryos applied to women’s reproductive decisions, it “would not look quite the same as it does now, with assumptions of incompetence, layers of second-guessing, and invasive counseling.”

About Abortion adds to our understanding of the abortion debate.  It confronts the dishonesty and distortions that characterizes much of the public debate.  It acknowledges the way the issue is deeply intertwined with fundamental questions about the organization of society.  It advocates bringing the experiences of those who have chosen abortion out the shadows, and it succeeds in providing a richer foundation for public consideration of the issue.

About Abortion is an important book that has already received wide attention, including a New Yorker review that coincides with our consideration of it here.  http://www.newyorker.com/magazine/2017/04/03/why-its-become-so-hard-to-get-an-abortion.

For this Concurring Opinions book symposium, we have invited an all-star cast of thinkers who have a variety  of different perspectives on abortion:  Helen Alvare, Caitlin  Borgmann, Khiara Bridges, David Cohen, Leslie Griffin, Linda McClain, David Pozen, Lisa Pruitt, and Rachel Rebouche.

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The Clay Feet of Qualified Immunity Doctrine

I want to draw your attention to an important new paper by Will Baude on the flawed legal  foundations of qualified immunity doctrine. The paper lucidly explains that the Supreme Court’s explanations for why 42 U.S.C. Section 1983 should be interpreted to include a qualified immunity exception are unconvincing, and thus at a minimum the Court should stop enforcing the doctrine vigorously through summary reversals and compounding its error.

As a law clerk and then as a scholar teaching Torts and Constitutional Law, I have always found qualified immunity law puzzling. Why? Because Section 1983 says nothing about immunity and there is no compelling reason for thinking that Congress intended to create anything like qualified immunity following the Civil War.  (I looked into this when I was writing the Bingham biography, but I did not find anything revealing). The only way that I can make sense of the Court’s cases in this area is that Section 1983 is being treated as a common-law statute much like the Sherman Antitrust Act or the Lanham Act. By that I mean that the Justices believe Congress intended to give the courts broad latitude to develop the law of the statute. Professor Baude observes, though, that the Court has never given this justification for its qualified immunity rulings, perhaps because there is also no reason to think that Congress thought Section 1983 was that kind of statute.

The law in this area is so thick that it is hard to imagine the Court abolishing qualified immunity (though, of course, Congress can). Indeed, it is telling that none of the Justices dissent from the basic features of current doctrine. Professor Baude’s paper, though, might change that.