Category: Civil Rights


The Limits of Anti-Discrimination Law

Joanna Grossman’s Nine to Five is a masterfully assembled set of commentary on sex discrimination cases. Joanna’s deft explanations and critiques of doctrine would make it great for the classroom, sort of like a volume from the “Law Stories” series but with a lot more law. Bringing the commentaries together also allows the collection to highlight some limits of discrimination law as it is now constituted. Nancy Dowd has already raised the challenge of intersectionality; another classic constraint in discrimination law is that equality can be achieved either by leveling up or by leveling down. On the issue of accommodating family responsibilities, for example, American law’s narrow conception of equality has a hard time justifying a level-up, despite the extensive body of feminist scholarship on the gendered nature of the neoliberal marketplace and its “ideal worker.” (See chapter 35, on Young v. UPS.) The demands of “the market” serve as conversation-stoppers in discrimination law, which is understood as regulation of the market, even though aspirations for sex equality include non-market goals. In light of emerging movements demanding that markets serve people instead of the other way around, the next phase in the development of discrimination law will be defined by whether it can move past the ideology of the market.

As I read through Nine to Five—especially the chapters on accommodating pregnancy, work/life balance, and the masculinity of the ideal worker—I kept coming back to the title. Joanna uses the movie 9 to 5 as a jumping off point for talking about gender in the workplace. I have long been curious about the phrase “9 to 5” and its relationship to the labor movement’s hard-won eight-hour workday. “9 to 5” has at times been a pejorative term for a corporate drone, but today it carries the aspirational tone of the past—the wish for a work day that really ends at 5, an office job that stays at the office.

An early expression of the demand for the eight-hour workday came from Robert Owen, who proposed an even division of the day: “8 hours labour, 8 hours recreation, 8 hours rest.” Today, we refer to the eight-hour workday as standard. After all, the Fair Labor Standards Act requires overtime for hourly workers above forty hours a week, and the archetypal, salaried office worker is “on the job from 9 to 5.”

Except that almost nobody is actually on the job from 9 to 5. I discovered this for myself when I started my first office job, working for the federal government. As Joanna discusses (chapter 54), the federal government is the nation’s largest employer and is therefore not only the enforcer of laws but also a standard-setter in practice. With Dolly Parton echoing in the back of my naïve mind, I learned that as a salaried employee I was expected to work a minimum of eight hours per day, with a half-hour unpaid lunch break, a 15-minute unpaid break in the morning, and a 15-minute unpaid break in the afternoon. My workday could be 8 to 5, 8:30 to 5:30, or 9 to 6, but definitely not 9 to 5. Today, the vast majority of office workers work the federal day or longer. Workers subject to FLSA rules not only get their breaks unpaid but have had to go to court over whether hours spent donning protective gear or descending into coal mines are part of their work day.

From the employer’s perspective, of course, it isn’t eight hours of work if the employee disappears for an hour at lunch. What is notable, however, is that law and culture adopted the employer’s perspective and thereby shifted from the “eight-hour work day” to “eight hours of work.” When eight hours is understood not as the portion of one’s life to be devoted to employment but as the quantity of production to which the employer is entitled, the “work day” expands, stealing time from recreation and rest because the work day has been excused from recognizing the humanity of the worker.

The work day could, instead, be “one-third of the day of a human being,” who will necessarily have to deal with some aspects of her humanity during that period. After all, no one is getting any reimbursement or comp time for having to spend some of their “8 hours for recreation” on eating or going to the bathroom, nor do we get to come in late for work when our “8 hours for rest” are interrupted by any number of human realities. “Eight hours of work” instead of an “eight-hour work day” converts time, a human experience, into a commodity defined by its alienation.

This same shift from human-centered goals to market-centered rules, which ultimately place the values of the market above all else, operates in the difficult corners of discrimination law. For example, Nine to Five tackles several problems that arise in the context of school-affiliated sports: pay disparities between the coaches of boys’ and girls’ teams (chapter 3); unequal treatment of the teams themselves (chapter 9); and the toxic masculinity of sports culture, which bleeds into politics, business, and education (chapters 55 and 56). One reason discrimination law often fails to advance equality in these contexts is that it allows market ideology to trump not only non-discrimination principles but also the purported values of sports and educational institutions themselves.

In the case of coaches’ salaries, Joanna dissects the “market defense” that the EEOC has made available to schools: to justify discriminatory salaries, a school need only refute that coaching its girls’ team requires as much skill, effort, or responsibility as coaching its boys’ team. Schools routinely argue that male coaches are responsible for more money and more media management, and that male coaches arrive at the school with higher prior salaries and more experience coaching and playing sports. (p. 20) Joanna points out that these factors allow the school to “buil[d] on past discrimination against female coaches” and that the school itself creates the expectation that boys’ teams will play for higher stakes in both prestige and money. Here, not only the logic of the market but also the explicit sexism of the market is invoked to constrain discrimination law, even when the market defense is offered by non-profit institutions who claim that they sponsor athletic contests not to make money but to support “the higher education mission” and create “an inclusive culture” with “career opportunities for coaches and administrators from diverse backgrounds.”

Players from the U.S. women’s national soccer team (of which Joanna is clearly a fan!) have filed a pay equity suit that will raise these issues, albeit without a school affiliation: the soccer federation’s main defense is that the women’s game doesn’t make as much money as the men’s because it isn’t as popular with fans. There are factual questions about whether this is true and the extent to which, if true, it is the result rather than the cause of discrimination. But a larger question is whether that should matter. Assuming the market defense to be factually true, it should not end the conversation but begin it. Joanna demonstrates how this conversation should proceed in a different context: Discussing employer liability for “sudden, severe [sexual] harassment” (chapter 25), she notes that, sometimes, severe harassment will occur that no reporting system could have prevented. The question, then, is who should bear that cost? Nothing in the logic of sex discrimination law, or greater aspirations for an equal and just society, suggests that the victim rather than the employer should bear 100% of the cost. Similarly, it is not written in stone that women rather than soccer federations should bear the costs of sexist sports culture.

Other workplaces have their own versions of this market defense. In academia, it is a commonplace at many institutions that the only way to increase one’s salary is to get a job offer elsewhere. It is also a commonplace that this is a terrible policy and that it has a disproportionately negative impact on women. It persists because of the market defense.

In public debates about the gender wage gap, various factions talk past each other about whether the gap reflects “real discrimination” or “women’s choices,” which include things like taking “time off” for children or subordinating one’s own career to a spouse’s. This dichotomy is largely beside the point. Some portion of the wage gap is due to flat-out pay discrimination; some is due to discrimination in hiring; some to discrimination in the “pipeline”; some to job segregation that is linked to historical pay inequities between men’s work and women’s work; and some is due to women continuing to perform the bulk of unpaid family labor (details in chapter 51). Why does any of those things justify a skewed distribution of economic security and wealth? The market defense, writ large, puts artificial limits on aspirations for equality.

Speaking of family labor: Readers of this symposium were likely amused by Robert Owen’s facile division of the day into “8 hours labour, 8 hours recreation, 8 hours rest.” When, pray tell, was dinner to be cooked, the house cleaned, and the children’s noses wiped? Those tasks, in Owens’s mind, presumably belonged in someone else’s work day, but today we know them as the second shift, performed by people who “talk about sleep the way a hungry person talks about food.” It’s time to revisit not just minimum wages but maximum hours so we can earn our bread and bake it too, and still have time to tend our roses.



The Long-Discredited Challenge to the Impartiality of Minority Judges

Recent challenges to the impartiality of a federal judge based on the judge’s racial identity harken back to a period when accusations of this nature occurred with some frequency. This issue of race and judicial neutrality, and its ultimate resolution more than thirty years ago in a little known case, Pennsylvania v. Local Union 542, International Union of Operating Engineers, should be understood within historical context.  Read More


UCLA Law Review Vol. 64, Discourse

Volume 64, Discourse

Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United Alexander Hertel-Fernandez & Paul Secunda 2
Lessons From Social Science for Kennedy’s Doctrinal Inquiry in Fisher v. University of Texas II Liliana M. Garces 18
Why Race Matters in Physics Class Rachel D. Godsil 40
The Indignities of Color Blindness Elise C. Boddie 64
The Misuse of Asian Americans in the Affirmative Action Debate Nancy Leong 90
How Workable Are Class-Based and Race-Neutral Alternatives at Leading American Universities? William C. Kidder 100
Mismatch and Science Desistance: Failed Arguments Against Affirmative Action Richard Lempert 136
Privileged or Mismatched: The Lose-Lose Position of African Americans in the Affirmative Action Debate Devon W. Carbado, Kate M. Turetsky, Valerie Purdie-Vaughns 174
The Right to Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First Amendment Protection? Clay Calvert 230

Developmental Equality

We live in a time where we can accurately predict the risks and opportunities for many children.  As surely as if we marked them at birth (or even before), we can identify who will likely succeed and who will likely fail by adulthood.  Race and gender, alone and in combination, generate clear odds.  Disparate risk generates a hierarchy of children, and we know who will be at the bottom.  Children’s inequalities are linked to developmental supports for some children, coupled with not only the lack of support for others, but also the presence of barriers and challenges, designed for children to fail, not to succeed.

Children’s inequalities, by race and gender, are particularly evident in the life course of Black boys.  Their patterns from birth to 18 are an example of similar patterns for other children at the bottom.  I do not mean to suggest here a hierarchy of inequalities, but rather to use their life course to adulthood as an example of the marked outcomes for certain children.  At birth, a Black baby boy has more than a one in three risk of being born into poverty.  He has a one in two risk of never graduating from high school.  And he has a one in three risk of being incarcerated in his lifetime, in the juvenile justice system or the adult criminal justice system.  His risk of incarceration doubles if he is born at the lower end of the socio-economic scale.  While he may transcend these risks, the trajectory funnels him toward failure and subordination, to the low end of what is a hierarchy of opportunity for kids.

These disparate negative risks to development are linked to systems that fail him:  systems that do little to support, and much to undermine, his growth to his full potential.  These are systems constructed and perpetuated by the state, at federal, state, and local levels, by the choice of policies despite the evidence of disparate, unequal outcomes along known, identifiable identity lines. Those systems include the poverty system (the clutch of policies that perpetuate poverty, and income inequality by race, rather than provide pathways out of poverty); the education system (highly segregated by race, disparate in resources and outcomes school-to-school, and especially negative in outcomes for Black boys), and the juvenile justice system (a largely boys’ system designed to punish and disadvantage for life rather than rehabilitate; and a sharply disparate system in every negative way for boys of color, particularly Black boys).  In combination, these systems and others directly impact the lives of Black boys, their families, and their communities in negative ways that replicate inequality.  The pattern is not merely one of insufficiency or inadequacy, but of barriers and harms.

The inequalities of Black boys are not unique.  There are other children who are predictably at the bottom, that we expect to be there.  And unequal hierarchies are not unique to American children.  In many countries, data reveal which children are marked for failure.  So, for example, in all countries in Europe in which they are present, Roma children are disproportionately poor, minimally educated, and jobless; the most unequal are Roma girls.  Muslim children similarly are targeted in many European countries, as are migrant and refugee children.

How can we address these inequalities, and those of other identifiable groups of children who reach adulthood lacking in opportunity due to failed outcomes and barriers placed in their way?   I propose that we have to think about these blatant inequalities differently, in order to craft meaningful change, by embracing a model I call “Developmental Equality.”

Read More


FAN 110 (First Amendment News) Steve Shapiro to Step Down as ACLU’s Legal Director

Civil liberties without Steve Shapiro is like the Rolling Stones without Jagger. — Kathleen Sullivan

Steve Shapiro

          Steven Shapiro

He is a giant in his world, the world of civil liberties. For some two decades he has been the man at the helm of defending freedom on various fronts ranging from free speech to NSA surveillance and more, much more. His journey began 40 years ago as a staff counsel to the New York Civil Liberties Union.

He is Steven R. Shapiro.

Sometime this fall Shapiro will step down as the Legal Director of the American Civil Liberties Union. He has long been the one ultimately responsible for the ACLU’s entire legal program. Equally significant, Shapiro has been most closely involved with the ACLU’s Supreme Court docket. Ever since 1987, he helped to shape, edit, and occasionally write every ACLU brief to the Supreme Court.

  • Law Clerk (1975-1976 ) Judge J. Edward Lumbard, Court of Appeals, Second Circuit
  • J.D. (1975), Harvard Law School, magna cum laude.
  • B.A. (1972), Columbia College

Since 1995 Shapiro has served as an adjunct professor at Columbia Law School, where he has taught “Civil Liberties & the Response to Terrorism,” and “Free Speech and the Internet.”

 Shapiro is a member of the Board of Directors of Human Rights First and the Policy Committee of Human Rights Watch, as well as the Advisory Committees of the U.S. Program and Asia Program of Human Rights Watch.

Steven Shapiro, “The Roberts Court and the Future of Civil Liberties,” Houston Law Center, April 20, 2012

Natalie Singer, “Freedom Fighter, A conversation with Steven R. Shapiro ’75

SCOTUSblog on Camera: Steven R. Shapiro (complete six-part series here)

The Measure of the Man: What Others Say

I invited a few of those who know Steve Shapiro and are familiar with his work to offer a few comments. Before proceeding to their full comments, I selected a set of words drawn from them that capture the measure of the man: Here are those seven words:








Nadine Strossen: “Steve Shapiro has been a supremely thoughtful, lucid, persuasive advocate of First Amendment rights and other civil liberties, both orally and in writing. Whether he is serving as Counsel of Record on a Supreme Court brief or giving a sound-bite for the national media, he always presents even the most complex, controversial positions clearly, colorfully, and compellingly.”

EVAN E. PARKER/ THE TIMES Steven Shapiro, legal director of the American Civil Liberties Union, speaks Thursday at Valparaiso University's School of Law about the legal aspects of the United States Patriot Act.

   [credit: Evan E. Parker/ The Times]

Robert Corn-Revere: “Through his long career in defending civil liberties, and First Amendment rights in particular, Steve Shapiro demonstrated that protecting individual rights often requires championing the right to express ideas you abhor, but that doing so is necessary to protect basic freedoms. For those of us who had the privilege of working with him, his principled advocacy will be greatly missed.”

Burt Neuborne: “Steve Shapiro set the standard for all once and future ACLU Legal Directors. I know because I didn’t reach his standard. Steve has a precise and uncannily quick analytic mind that breaks complex fact patterns down into controllable issues, together with a keen strategic sense that accurately separates a good academic argument from an argument having a chance in the real world. Couple Steve’s extraordinary legal ability with his careful approach to administration, unflappable good humor, patience, and deeply principled commitment to the ACLU, and you have the key to his enormous success. He leaves office with the respect and affection of hundreds of lawyers whose work he aided, and with the knowledge that he performed one of the nation’s most important legal tasks with brilliance and humanity.”

Erwin Chemerinsky: “Steve Shapiro has done a truly spectacular job as Legal Director of the ACLU. The ACLU legal staff has grown tremendously and likewise benefitted greatly under his leadership and has made a huge difference in so many areas of law. He has been especially effective in directing the ACLU’s presence in the Supreme Court.”

Kathleen Sullivan: “Over his remarkable tenure Steve’s energy, intellect, and suppleness enabled the ACLU to navigate profound changes in the landscape of security, privacy, and freedom. It has always been a joy to work with him.”

Paul M. Smith: “It has been my privilege and pleasure to work with Steve Shapiro on a large number of projects over the years. For a quarter century, he has been on the job at the ACLU displaying a breadth of knowledge and a depth of wisdom that has been extraordinary.”

Arthur Spitzer: “At a recent ACLU Nationwide Staff Conference where Steve Shapiro’s forthcoming retirement was announced, the event planners handed out cardboard fans that said, ‘We’re all fans of Steve.’ The humor may not have been brilliantly original, but I think no one disagreed with the sentiment. Steve is a terrific lawyer, often seeing the deep problems in a case before anyone else and then seeing the way around them. But I think his even greater value to the ACLU has been his ability to be an honest broker among all the competing viewpoints within the ACLU. As far as I’ve been able to perceive (although from afar, at the local affiliate in DC), everyone feels that Steve understands and appreciates his or her concerns, weighs them fairly, and takes them into account, even if not ultimately agreeing. That will be a hard act to follow.”

UnknownOne Measure of His Work: Free Expression Cases

Below is a list of all the free speech cases (not all First Amendment cases) in the Supreme Court where the ACLU filed or signed onto a brief in the last ten terms. The direct cases are marked by an asterisk; all the others are amicus briefs.

2014 Term:

2013 Term:

2012 Term:

2011 Term:

2010 Term:

2009 Term:

2008 Term:

2006 Term:

2005 Term:


Court Denies Review in Sign Case Read More


West Point, Swimming, and Developmental Equality

Two separate stories in the news speak volumes about our expectations, assumptions, and knowledge about the lives of children of color.  We know they develop under an expectation of failure rather than success.  Rather than an equal opportunity to succeed, we know, implicitly, that they are funneled to failure.  Thus, when we find children of color unexpectedly successful, we are startled by their transcendence.

We should examine our expectations, our acceptance of the structural discrimination that we passively support or ignore that perpetuates inequality.  Once we do, we have to confront the harshly unequal developmental path for children of color.

The first story is about a photograph of a group of 16 African American women in their dress uniforms as graduating seniors at West Point. West Point still has only a minority of women (the 2014 entering class was 78% male), and remains mostly white (70%).  The women in the photo represented all but one of the Black women graduating, a mere 1.7% of the graduating class.  The women are posed outside the oldest barracks,  a favorite setting for graduation pictures replicating similar groups of graduates for over a 100 years.  Each of the women stands with her arm bent upward ending in a raised fist; some have their arms simply at their side, while a few extend theirs over their heads.

So what did the women in this photograph mean by their pose?

A statement of black female empowerment?  A statement of personal fortitude and accomplishment, and group solidarity?  A statement of protest?  A statement of difference, separating them from other graduates?  A statement of political content, perhaps with #Black Lives Matter or #Say Her Name, movements that have raised consciousness about the inequalities in black lives?

Read as protest, it would violate the norms of universality, of color and gender blindness, and of conduct becoming an officer.  The picture generated enormous controversy for several days.  Each person viewed it from their context, including their view of women, of women of color, and of these women’s place in this setting and institution historically male and white.  Also part of the context was making meaning of their common gesture of a raised clenched fist.   Triggering calls for disciplinary action against the seniors, the controversy finally ended when it was determined that the students had done nothing that required disciplinary action.

For me, in addition to the debate about meaning was the universal unspoken assumption that black women in this place were out of place; not because they did not deserve to be there or to pose like countless other graduates of West Point, but rather, they had transcended the expectation that their place was elsewhere.  Read More


FAN 102.2 (First Amendment News) Latest First Amendment Salon: Cyber Harassment & The First Amendment

Danielle Citron & Laura Handman

     Danielle Citron & Laura Handman

Professor Danielle Citron (author of of Hate Crimes in Cyberspace) was in fine form as she made her case to an audience (in Washington, D.C. & New York) of First Amendment experts — lawyers, journalists, and activists. Laura Handman (a noted media lawyer) responded with talk of her own cyber harassment experience and then proceeded to make a strong case for the need to develop industry guidelines to protect privacy and reputational interests. Ilya Shapiro (a Cato Institute constitutional lawyer) moderated the discussion with lively and thought-provoking questions, including one about the wisdom of the European “right to be forgotten.” All in all, it was an engaging and informative discussion — yet another between a representatives from the legal academy and the practicing bar.

Laura Handman, Ilya Shapiro & Danielle Citron

Laura Handman, Ilya Shapiro & Danielle Citron

It was the initial First Amendment Salon of 2016. The by-invitation discussions take place at the offices of Levine Sullivan Koch & Schulz in Washington, D.C., and New York and sometimes as well on the Yale Law School campus at the Floyd Abrams Institute for Freedom of Expression.

Selected Excerpts

Professor Citron: Unfortunately, we have “network tools used not as liberty-enhancing mechanisms, but instead as liberty-denying devices.”

Professor Citron: “I am modest in my demands of the law because I am a civil libertarian. My proposals are modest.”

Among others, probing questions and comments were offered by Ashley MessengerLisa Zycherman, Lee Levine, and Victor A. Kovner.

 YouTube video of discussion here.

 Next First Amendment Salon 

May 16, 2016, Chicago: Professor Geoffrey Stone will do a public interview with Judge Richard Posner on the topic of the First Amendment and freedom of speech.

Previous First Amendment Salons 

(Note: the early salons were not recorded)

November 2, 2015
Reed v. Gilbert & the Future of First Amendment Law

Discussants: Floyd Abrams & Robert Post
Moderator: Linda Greenhouse

August 26, 2015
The Roberts Court & the First Amendment 

Discussants: Erwin Chemerinsky & Eugene Volokh
Moderator:Kelli Sager

March 30, 2015
Is the First Amendment Being Misused as a Deregulatory Tool?

Discussants: Jack Balkin & Martin Redish
Moderator: Floyd Abrams

March 9, 2015
Hate Speech: From Parisian Cartoons to Cyberspace to Campus Speech Codes

Discussants: Christopher Wolf & Greg Lukianoff
Moderator: Lucy Dalglish

July 9, 2014
Campaign Finance Law & the First Amendment 

Discussants: Erin Murphy & Paul M. Smith
Moderator: David Skover

November 5, 2014
What’s Wrong with the First Amendment? 

Discussants: Steven Shiffrin & Robert Corn-Revere
Moderator: Ashley Messenger

April 28, 2014
Abortion Protestors & the First Amendment

Discussants: Steve Shapiro & Floyd Abrams
Moderator: Nadine Strossen

Salon Co-Chairs

  • Ronald K.L. Collins, University of Washington School of Law
  • Lee Levine, Levine Sullivan Koch & Schulz
  • David M. Skover, Seattle University, School of Law

Salon Advisory Board

  • Floyd Abrams, Cahill Gordon & Reindel
  • Erwin Chemerinsky, University of California at Irvine, School of Law
  • Robert Corn-Revere, Davis Wright Tremaine
  • Robert Post, Yale Law School
  • David Schulz, Floyd Abrams Institute for Freedom of Expression
  • Paul M. Smith, Jenner & Block
  • Geoffrey Stone, University of Chicago, School of Law
  • Nadine Strossen, New York Law School
  • Eugene Volokh, UCLA School of Law

Wedlocked or Wedlinked? Will Same-Sex Couples Remake Marriage or Will They Demonstrate Why Others Should Abandon it?

Katherine Franke’s Wedlocked is a model of critical scholarship.  The book’s motto is “be careful what you wish for” as it ponders the potential negative consequences of a newly granted ability to marry.  Written during the ten year period leading up to Obergefell, the book examines comparisons with the impact of legal marriage on freed slaves in the aftermath of the Civil War.  Franke has unearthed a largely untold story of the hardships African-Americans endured because of marriage, and because of the sudden imposition of a new system at odds with long established norms.  She carries the account into the twentieth-first century, noting the ways in which marriage legitimizes some families while it continues to disadvantage others, particularly in communities of color.  Throughout, Franke maintains her outsider stance as she chronicles wrenching stories of injustice, questions whether it is possible to overcome the legacy of racism and homophobia, and worries that the movements for sexual liberation and gender equality will be subsumed by the emphasis on marriage.  The result is a provocative and original account that in many ways is as interesting for what it leaves unsaid as for what it addresses directly.


The two best parts of the book are Franke’s reclamation of nineteenth century marriage cases and her musing at the book’s end about whether marriage is really well-suited for same-sex couples.  Franke has dug deeply into the archives, and come up with fascinating accounts of the legalization of slave marriages.  The most thoroughly documented material addresses the efforts of the Union Army, desperate for troops by 1864, to enlist African-Americans to join the fight.  The Emancipation Proclamation had freed only the slaves in the seceded states, and the Union promised emancipation for the slaves in the states, like Kentucky, that had not seceded.  When slaves left to join the military, however, their families faced often brutal retaliation from slave owners.  The families began to flee with the soldiers, but this, too, left them vulnerable, and when a Union Commandant evicted the families from Fort Nelson, Kentucky, in November 1864 without adequate food or clothing, many died of disease or exposure.  Congress, shocked into action by the images of children dying in their mothers’ arms (and the prospects of losing needed enlistments), voted to free not only the soldiers, but their wives and children, with compensation to the slave owners who were still part of the Union (p. 43-44).  While African-American slaves had not been able to marry, women who could establish that they were in a marriage-like relationship with an enlistee could obtain their freedom.  Franke reports, however, that marriage – and the freedom that went with it – exposed the women to new risks.  Even if their masters did not retaliate directly, they no longer had to support them, the Union Army provided little protection or assistance, and managing on their own was perilous.  Franke concludes with two contrasting paragraphs.  The first reflects her skepticism, as she emphasizes the “unintended harms” that can occur when the law gets too far ahead of social attitudes.  To confer a right to marry on people who previously could not marry, and to do so without “taking into account the underlying bigotry that caused their subordinate status, had the unfortunate result of leaving the newly favored group worse off than they were before they were recognized as rightsholders” (p. 49, emphasis in original) In short, marriage can be a problem rather a solution.  Yet, in the next paragraph, Franke acknowledges that the freed slaves did not necessarily see it that way.  While the law in effect adopted a form of common law marriage that tied legal significance to cohabitation, the former slaves were so eager to participate in marriage ceremonies that Kentucky military officials reported running out of marriage license forms.  Marriage was also a valued right for families who had been denied official recognition of their relationships.


The middle part of the book continues mining the historical records for marriage cases, and here Franke finds a tantalizing incomplete historical record.  In many parts of the South, prosecutions for bigamy, adultery and fornication were brought against African-Americans with no comparable cases against whites.  She assumes that these cases were part of an effort to use the criminal justice system to reacquire the labor of freed slaves, sending the men off to prisons that then leased out the prisoners’ labor under conditions often worse than slavery.  In other circumstances, however, African-American women brought actions against men who left them for other women.  Franke surmises that the women may have been using the legal system to identify a man responsible for support in an effort to protect their children from being seized and apprenticed to whites ready to put them to work in the fields.  Franke treats these cases as examples of the use of marriage as a trap for the unwary; she observes that the law that automatically legalized slave marriages was a “double-edged sword” (p. 132).  The mostly illiterate freed men and women did not necessarily realize that if one relationship ended and another began, they were guilty of the crime of bigamy.  Yet, many slaves did have multiple families as slaveowners had involuntarily separated couples and some of these couples wished to be reunited when slavery ended, setting up potentially painful confrontations.  Moreover, in the years afterward, freed men and women who wished to enter into new relationships were often not aware of the need to end an older union and, even if they knew about the law, did not necessarily have the resources (and often lacked the grounds) to get a formal divorce.  Franke uses these descriptions to draw parallels to gay and lesbian couples who married in the early adopter states such as Massachusetts only to find it difficult to divorce because of their home state’s refusal to recognize their marriage and their inability to meet the residency requirements for divorce anywhere else.  California couples found themselves in similar predicaments if they entered into domestic partnerships that were automatically converted to marriage as state laws changed, and the couples did not opt out (p. 146).  Franke observes that the “full implications of being automatically married were quite devastating for many black people” (p. 133) and she fears that same-sex couples may also find that marriage law may subject them to oppression from unsympathetic courts.  Her objection is that marriage is a “complicated vehicle through which to address the injustice of racism and homophobia” and that “the freedom to marry risks collapsing into a compulsion to marry” (p. 162).


This middle section of the book is less satisfying the initial and ending chapters.   Part of the reason is that while developments during the Civil War are well-documented, with newspaper accounts, congressional debates and letters from the participants providing some of the backstories, the court files after the war include no such details.  Franke is left to guess at the motivation of the parties and she cannot fill in the full context of the cases.  Moreover, as she recognizes, the parallels with the modern position of same-sex couples cannot be exact.  The problems that a lesbian doctor faces, if she is stuck in a marriage in Connecticut because of the civil union she entered in Vermont, are not really comparable to being shipped off to a chain gang and Franke says as much.   In both cases, the difficulties are partly ones of transition from an oppressive system to a not fully developed new one.  The real issue, which occupies the latter part of the book, is deciding what the new system should look like.


Franke’s final chapters are intriguing as an exploration of what happens now that marriage equality is at hand.  She acknowledges that the backlash has been less than she feared (though she documents numerous examples showing that it persists) and she notes the risk that same-sex couples’ marriage will be held up as further reason to disparage the less stable relationships of African-Americans and other marginalized groups.  Her accounts of gay and lesbian efforts to adapt marriage to their needs are insightful; she describes, for example, Fred and Melvin, who enlist a surrogate to have a child they intend to raise together.  They marry when the child is seven.  Fred is more interested in parenting than Melvin, however, and they enter into an agreement that if they divorce, Fred would have primary custody, and Melvin would have limited visitation and support equivalent to no more than 25 per cent of their combined responsibility for the child (pp. 220-21).  Such an agreement is almost certainly not enforceable in court and Franke wonders why couples who do not want the obligations associated with marriage are so eager to participate in the institution.  As with African-Americans, she acknowledges the importance of access to an institution that symbolizes full recognition and equal legal rights, but questions whether marriage can ever really address the needs of same-sex couples and, indeed, whether it should retain its ability to channel sexual activity for anyone.


This is the true subtext of the book.   Franke’s marriage skepticism pervades the volume; yet, it is couched in parables about unforeseen perils and the inability of a marriage-focused agenda to combat racism and homophobia.  The question her outsider account shies away from is a true insider one; what is marriage for?  Instead, her descriptions of marriage sometimes sound like they might have been authored by the Obergefell dissenters.


Franke, for example, tells the cautionary tale of Beth and Ruth.  Beth earned considerably more than Ruth.  During their cohabitation, Beth agreed to pay 80% of their combined expenses, while Ruth promised not to claim a right to Beth’s assets if they should split.  The two later married and divorced without signing a premarital agreement.  When they split, the judge, who had never before handled a case involving a same-sex couple, insisted on dividing not just their savings during the marriage, but their accumulation of assets during their cohabitation, a period that included time when Beth was married to someone else.  Franke objects to the judge viewing their relationship through a “heteronormative lens” and queries whether “this act of translation” does “violence to Beth and/or Ruth, or for that matter to lesbian relationships more generally?”  (P. 213)


One wonders, though, why Franke’s advice to Ruth isn’t to appeal and how exactly Franke would decide the appeal if she did.  The point of an appeal would be straightforward: the trial court applied a legal standard that does not apply to heterosexual spouses and is almost certainly wrong as a matter of law.  Courts ordinarily treat property accumulated before the marriage as separate property however long the parties lived together, and given that Ruth and Beth appear to have had an express agreement not to claim each other’s property as a result of the cohabitation, the appeal appears to be an open and shut matter.  Problems of transition, whether in the aftermath of slavery or the advent of marriage equality, are inevitable; it does not necessarily say much about what marriage should become in the new era.


Franke hints at, but does not fully engage the latter question (nor does she give many clues to how exactly she would write a decision in Ruth’s favor).   In calling the result “heteronormative,” she suggests that marriage still rests on the exchange between a man with assets and a woman made vulnerable by her assumption of domestic responsibilities, and that same-sex relationships do not necessarily rest on the same exchanges.   The question she does not ask is whether these assumptions are still appropriate for anyone’s relationships.   What has made marriage equality possible is the move away from marriage as an intrinsically gendered institution.  Kennedy’s majority opinion in Obergefell, whatever one thinks of his paean to marriage, acknowledges that the decision is possible only because of the dismantling of gender inequality.   The conservative dissenters, in contrast, opposed the result because of their insistence that marriage retain its intrinsically gendered nature as a way to deal with the consequences of human reproduction.  Marriage equality could command the support of a majority of the Supreme Court because of the rejection of that view.


Moreover, heterosexual couples are struggling, in ways not so different from same-sex couples, with the question of what marriage means in an era gender equality.  Let us go back to Beth (who flips homes and has two children from a prior marriage) and Ruth, a union electrician who cycles in and out of the labor market.  The two could easily be named Beth and Rick.  Franke’s insight that marriage is a bad deal for Beth, who in her account both earns the higher income and takes primary responsibility for the children in the home, is right and I have argued elsewhere (with Naomi Cahn in Marriage Markets) that this is an important reason why women like Beth are not marrying the fathers of their children.   Moreover, for Beth this is a second marriage where one of her most important concerns ought to be to preserve her assets for the children of the first marriage.  This is the classic type of case where a premarital agreement is appropriate, and one suspects that as same-sex marriages become normalized, so too will same-sex prenups.


The larger question, however, is what purpose (if any) marriage still serves for such couples and whether the conversation between same-sex and different sex couples working through the same issues will enrich or (as Franke seems to suggest) impoverish the discussion.  Franke is right that this conversation today is deeply gendered.  Rick, the electrician, for example, is likely to be seen as mooching off Beth, even if he cleans house and makes gourmet dinners, while the judge seemed to place Ruth in a housewife’s role whether or not she took on more than half of the couple’s domestic responsibilities.   Sociological studies of marriage seem to indicate that it works well for two career couples who can afford to hire domestic help and for traditionally gendered breadwinner, homemaker relationships; it does not seem to work well where one of the spouses is both the primary caretaker and the more reliable breadwinner.  Relationships like that between Beth and Ruth (or Beth and Rick) pose important challenges for society more generally.


At the end, therefore, while Franke’s volume offers a compelling critical account that addresses “the perils of marriage equality,” it does not really try to engage the question of what role marriage should play.  To be sure, Franke would dismantle much of it, particularly the insistence on monogamy and the restrictions on sexuality associated with the institution.  The harder issue is the association with children.  Here, Franke’s critical account is telling.  The real problem for African-American families gaining freedom in the Civil War era was the crushing impact of poverty and racism.  Franke rightly criticizes the failure of the Union, eager for the enlistees’ services, to provide for their vulnerable families.  Yet, for Franke, the Union obligation should not have rested on marriage; it should have rested on the need to address the poverty and racism that affected the entire group of freed and not yet freed slaves.  In the nineteenth century, however, the principle method of family provision depended on the combination of male wages and the identification of “legitimate” families entitled to share in these wages.   Progress for African-Americans accordingly depended either on their inclusion in the mainstream system, however much we might like to replace that system with something else, or development of a new, more racially appropriate system, that even if more consonant with the freed slaves own values, was likely to be stigmatized in accordance with the racism of the era.  In short, there were no good choices.


LGBT couples today are in a somewhat different position, in part, because marriage is no longer compulsory or universal for anyone.  It nonetheless remains a way of linking parents and responsibility for children and commanding community support for family undertakings.   Franke would prefer a system that does not depend as much on marriage and so would many of us.  She may be right, for example, that marriage promotion efforts stand in the way of greater recognition of the crushing poverty that has become a consequence of a more unequal society.    Encouraging the parents of these children to marry each other is likely to be as ineffective as it is misguided; directly addressing the racism that undermines these communities offers considerably more promise.   On the other hand, one thing that does separate married couples from cohabitants is shared (and legally enforceable) responsibilities to children.  Same-sex couples who adopt see themselves as two equal parents in their own eyes and before the law.  Similar couples, who take on parenting relationships without the formal sanction of either marriage or adoption, are more likely to disagree about their parenting status if the relationship ends.   Couples like Beth and Ruth will be more likely to manage their financial affairs through express agreements, whether inside or outside of marriage, as same-sex unions become more routine.  The much more telling question is the commitment couples like Fred and Melvin make to their children.  Marriage today has become an institution premised on formal equality.  Both spouses are held to equal rights and responsibilities for children born into the union even when, like Fred and Melvin, one parent takes on much more of the emotional and practical responsibility for children.  Adults should be free in the new era to design relationships of their choosing, much as Franke would have them do.  The question for the rest of us, however, is whether there is still a need that for institutions that guide the meaning of parenthood.  That question is not part of Franke’s inquiry.


A Historian’s Comments on Katherine Franke’s Wedlocked

In Wedlocked: The Perils of Marriage Equality legal scholar Katherine Franke compares the African American experience with marriage in the wake of the Civil War, with the quest for marriage equality for queers. Relying on a wide variety of archival sources and the experiences of lawyers specializing in queer family law, Franke details the problems that African Americans faced in their first encounters with marriage, drawing vital conclusions about the care queer people should take when we consider the implications of our newly won right to marry. As Franke so astutely asks, why should queers, who only recently gained the right to be free of state criminalization of our sexual lives in Lawrence v. Texas (2003), immediately invite the state to regulate those newly gained sexual freedoms through the institution of marriage? This question seems especially important given the profoundly gendered nature of Anglo-American marriage. Why would a people, who, by the very nature of our desires, trouble the gender binary, sign up for an institution that has historically been premised on it? Marriage, as Franke states, has “its own well-entrenched agenda” and thus “is a particularly value-laden institution within which to lodge claims for full citizenship.” (143)

Franke frames each chapter with a discussion of African Americans initial experiences with marriage, and thus, with the state. Rather than freeing black families to organize their families as they pleased, she finds that marriage instead opened them up to new forms of white violence, domination and control. For example, in the wake of the Civil War, Franke demonstrates that many states automatically married African Americans who lived in relationships that appeared “marriage-like” without their consent, or at times, even knowledge. People who had been living together in a variety of arrangements suddenly found themselves actually married. This preemptory state move did have some positive effects. After all, marriage licenses cost money– money that most couples in desperately impoverished African American community did not have. However, this also resulted in couples who had no intention of marrying, or any knowledge of the legal requirements of marriage, ending up married.

These automatic marriages opened African Americans to state discipline when they violated the laws governing marriage, such as monogamy and the need for divorce when ending relationships. This proved particularly devastating when the state, often at the instigation of jilted partners, began to prosecute African Americans for crimes directly related to their status as married or unmarried people—bigamy, adultery and fornication. Franke speculates that southern state governments bent on maintaining white supremacy, might have deliberately used violations of marriage law to deprive African American men of the vote, as many states then and now, had laws that disfranchised felons. Even more pernicious, she also wonders if states may have been motivated to prosecute African American men to pull them into the convict lease system. Convict lease, the use of convicts as unpaid laborers for either private or state projects, became a virulently exploitative form of labor discipline directed against African Americans well into the twentieth century.

Franke’s second major point revolves around the formation of alternative structures of family in both the African American and queer communities. Slave law (which traced descent through the mother) combined with traditions brought from West Africa, made slave families broadly matrilineal and matrilocal. Furthermore, the pressures of slavery, particularly the need for abroad marriages (husbands and wives who lived on separate plantations) and forced separation through sale, produced both polygamy (also found in West Africa) and serial monogamy. Finally, the disruptions of slavery encouraged a commitment to much broader family ties among slaves than among whites in the antebellum period. Slave communities relied both on extended kin, particularly aunts and grandmothers, and on what anthropologists call “chosen kin,” people with no blood ties who nevertheless take on family responsibilities. Historians have argued that this diversity of family forms encouraged resiliency among both individuals and the broader African American community.

While feminist historians have rightly cast these differences in a positive light (feminist evolutionary biologists point out that matrilineality produces better child outcomes than other systems), Franke demonstrates how whites (then and now) used diversity in family forms as proof of African American’s racial inferiority. Because they did not or could not always follow the “ideal” nuclear family form with a breadwinning husband and an economically dependent wife, whites consistently denied African American humanity. Denigrating them as inherently “immoral” people who had disorganized and dysfunctional families, whites in the 19th century argued against African American claims for citizenship rights.

Like African Americans, queers have developed a variety of family forms and embrace a much broader definition of family membership. Historically, queer couples, particularly men, have negotiated rather than assumed monogamy, even in long term relationships. Queers also rely extensively on “chosen families” made up of friends and ex-lovers. Finally, when they have children, queers deploy a number of strategies that, Franke points out, stretch the boundaries of legal definitions of families. In addition to the more “homonormative” (to borrow Lisa Duggan’s apt term) choices like couples adopting children, or having a child through ART, some queer folk create families with more than two parents. A lesbian couple, for example, who ask a gay male friend to provide sperm, might also ask him to be a “duncle” (donor uncle) who maintains a relationship with the child that, while not like a father, still provides important support and love. There are a myriad of ways in which queer families strain the traditional legal definitions of family with alternative models that, like strategies among African American, increase our resiliency.

Given these shared characteristics, Franke cautions queers about the dangers that marriage may pose to these much broader family ties. First, she points out, marriage would not protect any of these relationships. The fact that a lesbian couple could marry, for example, would do little to solidify their gay donor’s relationship to their child, much less, say, that of his siblings who may well be functioning as a third set of aunts and uncles. Second, Franke points out that the marriage equality movement itself has cast families not based on marriage as inferior and dysfunctional in order to emphasize the harm produced by policies that restrict marriage to one man and one woman. In their attempts to win marriage equality, she argues, proponents for marriage equality have thrown the rest of our family forms under the married nuclear family bus.

Finally, the granting of marriage equality has, in many states, actually damaged the ability of people to protect family members through means other than marriage.   In many states that have granted gay marriage, legislatures and private institutions have eliminated with domestic partnership registries or benefits. This denies all couples the right to choose between marriage and other kinds of relationships. As Franke points out, some couples may not be interested in the full set of responsibilities contained in marriage, but may still want the more limited set of benefits that derive from domestic partnership. Among other things, while marriage is easy, divorce can be difficult and expensive. Many couples may want to be recognized as partners, but might not be ready for marriage and the attendant risk of spending a lot of money should they break up. All in all, Franke is absolutely right that marriage does not solve all of our complex family problems, and in fact, when not thought through carefully, it may increase them. She argues persuasively for more choices in our family forms, rather than fewer.

Since I have been brought on board as the pet historian, I do feel I must add a little historical context to Franke’s text. Her arguments about the dangers of marriage are apt, but she provides little explanation, beyond a desire for “equality,” as to why the queer community turned to marriage. This leaves the reader wondering why in the world we would pursue such clearly problematic strategy, especially since, as Franke rightly indicates, gay liberation and feminist activists of the 1970s rejected marriage as an oppressive institution. The answer, of course, lies in the very real family crises the queer community confronted in the 1980s. As historian George Chauncey argues, both the lesbian baby boom and the AIDS epidemic forced the queer community to confront the problems attendant to having no easy way to legally acknowledge our family ties. Issues of custody, medical decision making, benefits and inheritance compelled us to turn to marriage as a one-stop-shopping for family rights in the context of the life and death decisions we confronted. In fact, had U.S. law not attached so many rights and benefits to marriage, it seems unlikely queers would have pursued marriage as a goal. (Chauncey, Why Marriage, 87-136))

To me, the most interesting part of Franke’s argument lies in the discontinuities rather than continuities between African American experience in the wake of the Civil War, and contemporary queer experience. She expected, for example, that queers, like African Americans, would experience an upsurge in discrimination and hostile attention from the state upon marriage. But this has, she freely admits, largely failed to happen. Similar to African Americans who brought their spouses before the courts for adultery, some queers have used the rules of marriage (and particularly the assumption of monogamy) to disadvantage ex-partners in matters of child custody and property settlement. She also has found a revival of interest among conservative lawmakers to strengthen (rather than doing away with) state laws against sex crimes like fornication and adultery, which are rarely enforced but remain on the books. However, Franke did not find that states used these laws disproportionately against queer people in the wake of queer marriage victories, as states did against African Americans in the 19th century.

Franke attributes this difference to the way gayness, and by extension, marriage equality, have broadly been seen as white, even if, in fact, many people of color identify as queer. She points out that most of leadership of “big gay” organizations are white and middle class, as have been the majority of plaintiffs in gay marriage cases. This perceived whiteness has increased the respectability of the movement, perhaps to the detriment of African American families, who have been unable, as hard as they try, to shed racist stereotypes of family disorganization and dysfunction.

Second, Franke argues that seeking civil rights through marriage itself represents a “traditional,” perhaps even conservative path. Marriage equality advocates have argued that they should be allowed to participate in marriage as it is currently defined. They have not, for example, pointed out the myriad of ways having two men, or two women, marry might challenge the deeply gendered nature of the institution itself. As she explains, “when the conservatives sign up for marriage equality, they do so because it dawns on them that their interests in traditional family values, in the nuclear family, in privatizing dependency, and in bourgeois respectability are stronger than their homophobia.” (203). Gay marriage, she argues, has allowed gays to take the “sex” out of “homosexuality.” It has allowed us to make homosexuality about family, intimacy and caregiving, rather than various kinds of stigmatized sexual activities, which, she and I both agree, continue to be fun, and worthy of championing.

Franke then raises, but does not answer, the essential question of why blackness has continued to carry such negative valences, even as queers have been able to “rebrand” homosexuality as family friendly, all-American and not really about sex at all. Here, my work on the relationships between gays and family in the post-war period may provide us an answer. Very broadly, I argue that the gay community’s strategy for gaining social acceptance put family bonds to the work of destigmatizing homosexuality.

“Coming out,” first popularized with gay liberation in the early 1970s, asked queer people to tell family and friends about their sexual orientation. The idea was that this would liberate them as individuals, but that it would also liberate the community by challenging heterosexual family members to rethink long held negative stereotypes about homosexuality. Furthermore, once out, the lived experience of queers in America exposes our kin to the depth of hostility and discrimination we face. However, the intense racial segregation of most American cities, ensures that we continue to live, work, and go to school with our own racial groups. U.S. public policy in the 20th century, particularly the Federal Housing Authority, actively promoted segregation, denying both whites and racial minorities the opportunity to live and go to school together, and therefore to know each other in intimate and productive ways. This is one of the many forms of systemic racism white Americans continue to ignore. Deploying kin and the bonds of love in the service of liberation has been a tremendously successful strategy for queers, and it explains why we, as Americans have come so far in such a short period of time on issues of sexual diversity, but have, at the same time, failed to make much progress addressing race, racism, and profound racial disparities.

Franke’s text is a reminder to the queer community that we are at a political and moral crossroads. While we still face some forms of discrimination, particularly the violence directed at trans folk, the fortunes of gender normative queer people have risen substantially. Having engaged in so much creative work around family, equality, and liberty over the last fifty years, we must now choose whether to retreat with our (now) homonormative families to the white suburbs, or to continue the fight for greater equality for all Americans. We know the vicious sting of discrimination, and we know what it’s like to fight desperately for our families as we define them. The question is, will we take those lessons into the fights against poverty and racism? History will judge us in the alliances we make, and the battles we bring. Like Franke, I would like to see us to continue in our queer battle to support all families, not just the ones we can defend through marriage.



Picturing the Past — New Photo Book on the Interment of Japanese-Americans

During a recent visit to one of my favorite bookstores — Biblion books in Lewes, DE — I had the pleasure of meeting Professor James C. Curtis (Emeritus of History at the University of Delaware), who has just published Discriminating Views: Documentary Photography & The Japanese American Internment.  

Dorothea Lange photo: Manzanar, California, July 4, 1942, WRA

Dorothea Lange photo: Manzanar, California, July 4, 1942, WRA

The 235-page book, laid out on wide pages of fine stock paper, “focuses on photographers hired by the War Relocation Authority (WRA) and shows how their images were shaped by the government’s need to explain and justify the evacuation, confinement and eventual resettlement of over 110,000 Japanese Americans, two thirds of whom were American Citizens. Discriminating Views analyzes the work of Dorothea Lange, Clem Albers, Francis Stewart, Tom Clark, Hikaru Iwasaki and other WRA photographers. The Manzanar photographs of Ansel Adams come in for special consideration. The author contends that WRA photographs were instruments of propaganda that often reflected the prevailing racial attitudes of the era.”