Category: Feminism and Gender

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Carol Sanger Replies to David Pozen: Rules, Standards, Abortion

David Pozen begins his post by tearing through an avalanche of subjects packed into 14 pages early in Chapter 1, whose only connection to each other seems to be their (sometimes opaque)  connection to abortion.  Upon reading what he describes as a “whirlwind tour,” I too had to ward off a feeling of vertigo until I remembered that I myself had written these lines and in this way on purpose. They appear in a section called What Abortion is About and I wanted to show what abortion looks like across the culture if you don’t take it one thing at a time but let the entire “culture of abortion” wash over you all at once.  The idea was not only to identify how much in America is about abortion but also to experience it, even at a reader’s remove.  Happy to say, both Pozen and I recovered and I am grateful to him for diagnosing the spinning sensation as, in the end, producing “an enhanced sense of clarity about the arc of abortion regulation.”

In this response, I want to riff on three aspects of Pozen’s insightful critique. The first concerns secrecy, the second The Closet, and the third, distinctions between and application of rules and standards in the reproductive context.

Secrecy first. Although Pozen has written on the complications of deep secrects in government and its leaky leviathan, he accepts my characterization of privately held abortion secrecy on its own terms. He translates it thus:  “secrecy [in the context of abortion] means that … dubious, paternalistic or factually erroneous claims” about abortions harms “are able to circulate with less pushback” than would be the case “in a more open conversational climate.”  Flipping the perspective, secrecy means that claims about abortion’s benefits also go unspoken; even the phrase—“abortion’s benefits”—is politically dangerous.

While I have argued that it is the perceived or actual threat of harm that turns privacy into secrecy, I want to consider a further possibility about why women stay mum.  Keeping abortion secret may also be a matter of familiarity with nondisclosure in the realm of women’s bodies and how they function.  Women and girls are used to keeping body secrets starting perhaps with the development of breasts (with hunching and layering to hide them) and ending with HRT (hormone replacement therapy).  These are but the end points of women’s reproductive bodies. They bracket a spectrum that includes periods, missed periods, intercourse, miscarriages, and menopause. These all concern reproduction and what is sometimes referred to as reproductive failure.   Abortion is something much worse; not a natural “failure” but a deliberate decision not to cooperate with nature’s scheme, women’s destiny,   God’s will, and so forth.   Accepting these many sources of secrecy, abortion secrecy as a practice may be overdetermined.

I turn next to Pozen’s conclusion that, like other behaviors “coded as shameful or deviant,” abortion “is in the closet.”  I agree.  But what I am less clear about is just why this is so.  Two distinctions between abortion and other stigmas highlight the puzzle.  First, unlike “being gay,” say—which many consider a constitutive aspect of identity—“having had an abortion” is not “being” anything.  It is an event, an occasion, a procedure, a decision, a push-pin marking one moment or episode in a woman’s life. Yet abortion is converted in the prolife public narrative to a character flaw that sticks, unless one repents and even then I wonder whether as a social matter, not a theological one, if repentance really removes the taint. I am reminded of a Mary Tyler Moore episode from the 1970s where Mary was shocked to learn that Mr. Grant was breaking up with his girlfriend because he had heard she was “that sort of woman.”  Disgusted, Mary pushes Lou and demands to know, “Just how many men is a woman allowed to have before she becomes “that sort of woman”? He replies, “Six.”  The abortion answer is apparently one.

The second piece of the puzzle concerns abortion stigma, about which much has been written.   Yet unlike other recognized sources of stigmatization, abortion is neither a trait, a constitutive commitment, nor a chronic condition.  “Having had an abortion” is not even an apparent stigma.  The stigma that keeps women in the closet is thus self-imposed; it is fear of stigma should the word get out.  In this way, some women who choose abortion do more than comply with the unnecessary and humiliating laws around consent: they also internalize the suppositions of the legislative framework.  In this way, the laws that signal abortion as deviant enlist women in the cause.  If half of the 59,000,000 women who have had an abortion (starting with the ones who would have been, say 25, in 1973 and so are 69 today) would tell just two people, this might illuminate—if not defang—the closet in useful  ways.

A mass (and private) revelation by grannies might address another of Pozen’s insights: that the problem with pro-choice disclosures is less one of ignorance that it is “a refusal of empathy.”  This is a particular take on Kenneth Doka’s concept of “disenfranchised grief.” It is not only that the woman isn’t entitled to mourn or commemorate, should she so choose, but she isn’t entitled even to be understood.  Talk to the hand, ladies, because the ears aren’t listening.    Empathy might also function as incentive: if you act kindly to women of reproductive age who have terminated an unwanted pregnancy, they might do it again.  In this regard, there is something to be said for women past their reproductive years to step up; their (assumed) lack of sexuality removes sex from the equation and isn’t at least part of the opposition to abortion based on disapproval of non-procreative sex?   Were I an activist, I would stir up grandmothers, seniors, and pastor’s wives to come out, among friends, with granddaughters, in reading groups (try About Abortion!).

Finally, I turn to Pozen’s observations about rules and standards in the context of abortion.  Rules, he explains, “limit case-by-case judicial discretion through crisp ex ante directives;” in contrast, standards force decision makers to “to think hard about whether they are acting appropriately and why.”  However, Pozen shows the counterintuitive consequences of the distinction when a standard like “the undue burden test” is applied in the context of abortion.  The result has not been “sensitive and honest debate,” but as Pozen states, an invitation to “endless cycles of opportunism and obstruction.”

Rules/standards difficulties extend into the subsidiary reaches of abortion regulation as well. Consider the treatment of minors where a straight out rule—the age of majority—does the initial sifting regarding which rules will apply. All women must comply with waiting periods and the many other conditions required for consent. But for those under 18 years, these rules give way to standards.  A bypass judge must determine whether the pregnant minor is sufficiently mature and informed enough to be permitted to consent to an abortion.  And here discretion raises its hydra heads.  Judges in some states have found that have found that filing a petition in court to commence a legal hearing indicates sufficient wherewithal (my word) to warrant granting her petition.  Others, particularly in Alabama, have found that nothing less than contemplating the consequences of the decision for one’s mortal soul will do.

One easy way out of this “piling on” for minors—who must comply with waiting periods and the rest on top of the bypass hearing—would be for states to lower the age of majority for abortion consent to 16 so that at least older teenagers would not have to undergo what Texas bypass attorney Susan Hays has called the “give the little tart a lecture” bypass procedure.   After all, legislatures use variable ages of majority for minors all the time; they are allowed in a number of states at age 16 to consent to sex with another minor as well as to obtain birth control without a parent’s consent.

At the end of his post, Pozen says that “the relationship between legal doctrine and cultural practice in such a politically charged field [as abortion] may be poorly illuminated by abstract propositions about the comparative merits of rules, standards, or the like.”  But abortion as a subject of inquiry and of regulation turns everything topsy-turvy:  teenage girls held too immature to consent to abortion are left to become mothers;   women are required to bury or cremate aborted fetal remains; the  procedure is “abnormalized” through its omission from Medicaid.   These various maneuvers are assaults on normal modes of reasoning.  Unpacking the failure of traditionally reliable legal concepts is necessary to our collective efforts to appreciate what is going on and how to improve our own parries and thrusts.  This is going to be a long match indeed, and I thank Dave Pozen for getting some of it going here.

 

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Carol Sanger Replies to Khiara Bridges: Medical Care and the “Down There” Problem

In the 1960s, a friend from ages ago went to a new gynecologist for a regular check-up.  As she lay there on the table, feet in stirrups covered with kitchen oven mitts in a gesture toward patient comfort, the doctor came in and said, “Hello, I am Dr. [Smith]. I am going to examine your body and then I will look ‘down there.’”  My friend replied, “’Down there’ is part of my body.”  (I can’t remember if she got up and left or not; it was the 60s and we were still fairly obedient.)

Whether  “down there” is part of one’s body for purposes of medical treatment is the question asked and very quickly answered by Khiara Bridges in her post “Abnormalizing Abortion.”  The answer is No, not if we use the term “medical treatment” to mean the treatment or prevention of all other medical conditions covered under Medicaid.  This was established under the Hyde Amendment, which bars federal Medicaid funds even for a pregnancy that endanger the woman’s health or life, or that was caused by rape or incest.  The “down there” issue has now become federal policy, as abortion is now a form of treatment literally segregated from the body politic.

Bridges uses About Abortion, and my interest in how abortion regulation tries to convince women not to terminate their pregnancies through moral suasion (and to punish women who do it anyway) as a point of departure toward other forms of regulation.  The Hyde Amendment isn’t a bit interested in moral suasion.  Instead, it sets a bright line rule at the poverty level that “coerces indigent women to carry their pregnancies to terms by leaving [the women] to scrape together the $300 to $3,000+ for their abortion procedures.”

Not only does the Hyde Amendment have actual power over an indigent woman by its refusal to fund an abortion procedure, but as Bridges powerfully points out, the denial of funding is rich with “discursive power” “insofar as it creates and legitimates discourses that describe abortion as ‘not healthcare.’”  Her point is that while I have focused on normalizing abortion, we ought to be attentive to just how and how forcefully law “abnormalizes” abortion by segregating it from all other healthcare.

By most people’s lights, abortion is a medical procedure even if one thinks the procedure should be illegal.  Its status as medicine is the basis of its regulation by the federal and state governments under the police power, that relic of 7th grade physics that still has purchase today in Constitutional Law.

Abnormalizing abortion through funding bans is of a piece with the battle to cover contraception under Obamacare, with the layers of regulation that treat it differently from all other procedures, and the global gag rule.  Moreover, the funding ban only applies to poor women, who are more often women of color, so that this form of maternal coercion, as Bridges points out, is tinged with race.

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Carol Sanger Replies to Naomi Cahn and June Carbone

We all know the common practice of thanking those who have made a conference or symposium possible, often uttered at the end of the day amidst the shuffle of papers and scraping of chairs as everyone heads off for wine and cheese.  I would like to flip the order and begin rather than end with my heartfelt thanks to Naomi Cahn and June Carbone for organizing this on-line conference/symposium on my newly released book, About Abortion.  They have been generous, gracious, patient, and astute in everything connected with this edition of Concurring Opinions.  Even before participating in this symposium, I have been indebted to Naomi and June for their own collaborative scholarship, ambitious in scope, inventive in method, and powerful in presentation and substance.  Although there is much to choose from, I am thinking particularly of their two books, Red Families/Blue Families: Legal Polarization and the Creation of Culture and Marriage Markets: How Inequality is Remaking the American Family.

Their introduction to the Symposium states that I have attempted to provide the “legal infrastructure for abortion decision-making,” and “a richer foundation for public consideration of the issue [of abortion].”  This was exactly what I was after in writing this book.  To help dissect, challenge, reframe, and assess the arguments in About Abortion, June and Naomi assembled a phalanx of wonderful reviewers who have approached About Abortion from almost every angle (though no one bit too hard on the images!).  For years I have presented drafts of the book’s nine chapters, accepting the proposition that the sooner someone sets you straight or objects to a line of inquiry or says something that sounds wrong but you have to think hard to figure out why, the sooner the manuscript will improve.  What I did not realize was that even after the book has an ISBN number and your mother can hold a copy in her hands, there is much to learn about what you wrote:  how it is received by readers (rather than how you heard it in your own head); things you missed (despite years in the making); and profitable connections between your own text to doctrines, policies, and viewpoints outside one’s particular ken.

For their careful reading of and willingness to comment on About Abortion, I am deeply grateful to Helen Alvare, Khiara Bridges, David Cohen, Leslie Griffin, Linda McClain, David Pozen, Lisa Pruitt, and Rachel Rebouche.  I thank them heartily.  My specific responses to each are posted beneath each of their reviews.  I look forward to on-going conversations with reviewers and other readers.

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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.

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Professor Carol Sanger

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Family Law After Obergefell

 

The Supreme Court’s 2015 decision in Obergefell v. Hodges marked a sea change in family law.  While the immediate impact of the decision is clear – same-sex couples now have the right to marry in every state – the implications of the decision for family law and for practicing family lawyers are considerably broader.  Recognition of marriage equality has created new issues for courts deciding divorce and parenting cases, and for lawyers advising clients about issues related to family formation and family break-up. This post will highlight the family law implications of Obergefell  and explore some of the issues that are likely to arise in future cases involving the rights and obligations of same-sex couples.

Same-sex divorce, American style

According to the Williams Institute, close to 400,000 same-sex couples were already married at the time Obergefell was decided. A recent Gallup poll estimates that more than 120,000 additional same-sex couples have married since that time. But not all marriages endure.  About 40% of heterosexual marriages now end in divorce, and it is reasonable to anticipate that the divorce rate for same-sex couples will be roughly comparable.  Indeed, access to the financial and parenting remedies associated with divorce is one of the important benefits of marriage.   But same sex divorces are likely to raise some challenging legal issues.

Parenthood and the impact of the marital presumption

When an opposite sex couple divorces, legal parentage generally is not disputed. In part, this is due to the operation of the “marital presumption” — the legal rule that identifies the husband of a married woman as the legal father of any children born (or conceived) during the marriage.  At one time, the presumption was nearly irrebutable.  More recently, courts in a number of states have allowed divorcing parties to rebut the presumption based on genetic evidence of non-paternity.

Courts and legislatures have already begun to grapple with the application of the marital presumption to same-sex couples. Although the language of the presumption is usually gendered — specifying both a husband and a married woman — some courts have interpreted the statutory reference to husband to apply as well to a female spouse.  Other courts have declined to interpret their statutes broadly, but have invoked equal protection principles to extend the marital presumption to same-sex partners. See, e.g., Gartner v Iowa Department of Public Health, 830 N.W.2d 335 (Iowa 2013).  Still others have refused to apply the presumption to same-sex relationships, citing its biological underpinnings or opining that such a step is a matter for the legislature, not the judiciary.

Even if courts apply the marital presumption to same-sex couples, questions remain about its impact. In most states, the presumption is now rebuttable, and genetic evidence of non-paternity is often (albeit not always) sufficient grounds to rebut the presumption. But should genetic evidence be relevant to parentage in a same-sex marriage, where both spouses know from the outset that one parent will not be genetically related to the child.  And how, if at all, should the presumption apply to gay male marriages, in which neither spouse is a “married woman” and where the woman who gives birth is generally not an intended parent?  These questions, of course, raise the broader issue of whether parentage should be understood as a biological fact, or (primarily) as a legal and social construct.  And, if parentage is primarily a legal construct, what role (if any) should marriage play?

Moreover, as its name indicates, the marital presumption applies only to children born (or conceived) during a marriage. But many same-sex couples today are co-parenting children who were born to one spouse before their marriage, perhaps during a prior heterosexual union.  The marital presumption is of no use here, just as it provides no basis for step-parents to assert legal parentage in the absence of an adoption.  Other doctrines such as de facto parenthood, discussed in Professor Murphy’s last post, may be available to establish parental rights, but establishing parenthood under those doctrines in fact-specific and uncertain, and the doctrine has been criticized as insufficiently protective of the autonomy of biological parents.

Moreover, while many states now recognize some form of de facto parenthood, others do not, and, in the absence of a judicial decree, states are not required to respect each other’s parentage rules.  Thus, a same-sex partner who is recognized as a legal parent in one state may not be recognized in another.  For this reason, many family lawyers continue to advise same-sex spouses to secure parental rights through adoption, even where a couple is married at the time their child is born.  But adoption can be both expensive and intrusive, and many same-sex couples understandably assume that their marriage renders adoption unnecessary, only to find upon dissolution that the law is far less settled than they imagined.  Judicial declarations of parentage, obtained at the time a child is born, could provide an alternative means of interstate recognition, but existing state procedures are not designed for same-sex couples, whether married or not.

Divorce-related financial remedies

The dissolution of same-sex marriages presents other challenges as well. Current standards for both property distribution and post-divorce spousal support depend significantly on the length of the marriage in question; the longer the financial interdependence associated with marriage, the more robust the post-divorce sharing rules.  But many of today’s same-sex marriages were preceded by lengthy periods of non-marital cohabitation, particularly in states that refused to allow same-sex marriage prior to Obergefell.  If such a couple divorces after a relatively short marriage, can a court base a property or a support award on the lengthy period of pre-marital cohabitation?   Many courts have refused to do so in cases involving opposite-sex couples who cohabited prior to marriage, noting that the applicable statutory language refers specifically to the length of the marriage, not to the length of the relationship.  Should these decisions apply to same-sex couples?  Other courts have relied on their on their equitable powers to consider non-marital cohabitation as a factor in fixing the financial consequences of divorce.  Some commentators have suggested using common law marriage as a solution to this problem.  But common law marriage has traditionally required that individuals have the legal capacity to marry each other at the time the relevant conduct took place and that the parties held themselves out as married in one of the handful of states that allow couples to contract a common law marriage.  Both of these requirements are likely to post problems for most same-sex couples.

And how should Obergefell affect the treatment of cohabitation relationships that break up without a marriage?  Prior to Obergefell, a number of states had begun to apply principles of equity or implied contract to redistribute assets accumulated in one partner’s name at the end of a long-term cohabitation relationship.  Many of these cases involved same-sex couples, and the couple’s inability to marry may well have influenced the court’s decision.  The American Law Institute’s Principles of Family Dissolution took these developments a step further by extending status-based property and support remedies to unmarried partners who “for a significant period of time share a primary residence and a life together as a couple.”  How should Obergefell’s recognition of marriage equality affect the viability of these doctrines?  Does the availability of same-sex marriage weaken claims based on non-marital cohabitation on the theory that a couple’s decision not to marry is an indication that they (or at least one of them) prefer not to be bound by marital sharing principles? Is this a preference that the law should respect, even if, in hindsight, it turns out to be a bad deal for one of the parties?  Or should courts continue to apply functional, as well as formal criteria, to determine the appropriateness of post-relationship financial sharing?

Wither Civil Unions and Domestic Partnerships

More generally, how should the availability of same-sex marriage affect other legal statuses, such as domestic partnerships and civil unions? Should states that previously recognized such unions automatically convert them to marriages unless a couple explicitly “opts out?”  Or should states require that domestic partners affirmatively “opt in” to marriage?  What should be the legal default?  Will private companies that previously provided benefits to same-sex domestic partners now restrict such benefits to married couples?  And, if so, has the “right” to marry celebrated in Obergefell become an obligation to do so – a possibility that Professor Kathrine Franke cautioned against in her 2015 book, Wedlocked: The Perils of Marriage Equality.

More broadly, should states retain these alternative legal statuses as a form of “marriage lite” or have they outlived their utility now that both same-sex and opposite-sex couples have access to marriage? And if states choose to retain these alternatives, do constitutional equality principles require that they be made available to opposite-sex as well as same-sex couples? To non-romantic partners such as siblings or other relatives?  Now that marriage is available to same-sex as well as opposite sex, couples, how much should it matter?

Beyond Marriage and Divorce

Marriage equality is also likely to affect legal developments in contexts beyond divorce and parenting disputes. In her recent article, Inheritance Law and the Marital Presumption After Obergefell, my colleague, Paula Monopoli, examines the impact of Obergefell on inheritance law; she argues that important policy goals support extending a conclusive marital presumption to all nonbirth/nongenetic spouses for purposes of inheritance law, and suggests that the presumption be unmoored from its biological roots and re-conceptualized as resting on the presumed consent of the nonbirth/nongenetic spouse to be the parent of any child born during a marriage.  In a broader frame, Douglas NeJaime, argues in his recent Harvard Law Review article, Marriage Equality and the New Parenthood, that marriage equality was both enabled by – and, in turn, enables — significant shifts in the law’s understanding of parenthood and in its ongoing construction of families.  Without a doubt, this is a construction project that should capture the imagination and engage the efforts of both legal scholars and practicing family lawyers for many years to come.

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Call for Papers: The Feminist Legal Theory Collaborative Research Network

Call for Papers – Friday September 16th Deadline

The Feminist Legal Theory Collaborative Research Network

Seeks submissions for the

Law and Society Association Annual Meeting

Mexico City, Mexico, at the Sheraton Maria Isabel, June 20 – 23, 2017

Dear friends and colleagues,

We invite you to participate in the panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in 2017. The Feminist Legal Theory CRN seeks to bring together law and society scholars across a range of fields who are interested in feminist legal theory. Information about the Law and Society meeting is available at http://www.lawandsociety.org.

This year’s meeting is unique in that it brings us to the Global South, and invites us to explore the theme Walls, Borders, and Bridges: Law and Society in an Inter-Connected World. We are especially interested in proposals that explore the application of feminist legal theory to this theme, broadly construed. This might include papers that explore feminist legal theory in comparative or transnational contexts, as well as in relation to the impacts of globalism and other intersections within particular locations, relationships, institutions, and identities. We are also interested in papers that will permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN, and welcome multidisciplinary proposals.

Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while you may submit papers that are closer to publication, we are particularly eager to receive proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.

The Planning Committee will assign individual papers to panels based on subject. Panels will use the LSA format, which requires four papers. We will also assign a chair, and one or two commentators/discussants for each panel, to provide feedback on the papers and promote discussion. For panels with two commentators/discussants, one may be asked to also chair.

As a condition of participating as a panelist, you must also agree to serve as a chair and/or commentator/discussant for another panel or participant. We will of course take into account expertise and topic preferences to the degree possible.

The duties of chairs are to organize the panel logistically; including registering it online with the LSA, and moderating the panel. Chairs will develop a 100-250 word description for the session and submit the session proposal to LSA before their anticipated deadline of October 19. This will ensure that each panelist can submit their proposal, using the panel number assigned.

The duties of commentator/discussants are to read the papers assigned to them and to prepare a short commentary about the papers that discusses them individually and (to the extent relevant) collectively, identifying ways that they relate to one another.

If you would like to present a paper as part of a CRN panel, please email:

  • An 1000 word abstract or summary,
  • Your name and a title, and
  • A list of your areas of interest and expertise within feminist legal theory

to the CRN Planning Committee at 2017lsacrn@gmail.com. (Please do not send submissions to individual committee members.)

Note that LSA is imposing a requirement that your summary be at least 1,000 words long.  Although a shorter summary will suffice for our purposes, you will be required to upload a 1,000 word summary in advance of LSA’s anticipated deadline of October 19. If you are already planning a LSA session with at least four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let the Committee know.

In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or roundtable discussion. If you have an idea that you think would work well in one of these formats, please let us know. Please note that for roundtables, organizers are now required to provide a 500-word summary of the topic and the contributions they expect the proposed participants to make. Please also note that LSA rules limit you to participating only once as a paper panelist or roundtable participant.

Please submit all proposals by Friday, September 16 to the email provided above. This will permit us to organize panels and submit them prior to the LSA’s anticipated deadline of October 19. In the past, we have accommodated as many panelists as possible, but have been unable to accept all proposals. If we are unable to accept your proposal for the CRN, we will notify you by early October so that you can submit an independent proposal to LSA.

We hope you’ll join us in Mexico City to share and discuss the scholarship in which we are all engaged and connect with others doing work on feminist legal theory.

2017 LSA Feminist Legal Theory CRN Planning Committee

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Feminist Legal Theorizing about the Second Amendment: What Heller Missed

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In my previous post, I suggested that it’s long past time for a feminist analysis of the right to keep and bear arms.  Drawing on my forthcoming article, “Guns, Race, and Sex,” this part follows the Court’s lead in Heller v. McDonald by examining the ratification history of the Second Amendment.

In Heller, the Court split the provision’s text into two parts.  The majority decided that the second (“operative”) clause, supported by the first (“prefatory”) clause, equaled an individual right to possess and carry weapons for self-defense purposes–not limited to militia service.  But closer examination of the Amendment’s terms and the context surrounding its ratification suggests structural purposes extending the individual use of firearms.

Based on their experience dealing with a distant and detached sovereign, among other things, the framers were deeply troubled by the prospect of a standing army.  To them, professional soldiers would be loyal to and help empower central government.  At the same time, they recognized the need for national security.  As a result, the Second Amendment reference to the militia reflects a compromise among the framers to provide for defense, but doing so in a way that would not jeopardize state sovereignty.  Put differently, it’s another check on federal power.  Framers believed that the state’s citizens—local men—would be the best guarantors of peace.  Those men were “the people” the Amendment references, which further suggests that this phrase has structural significance.

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Feminist Legal Theorizing about the Second Amendment: Gun Violence is a Women’s Issue

Thanks so much, Naomi, for inviting me to blog this month.  It’s really an honor and pleasure to participate in the lively discussion on this forum.

Starting today, concealed weapons will be allowed on college campuses in Texas.  Ironically, this new law goes into effect on the solemn anniversary of the state’s largest mass shooting at none other than its flagship institution, the University of Texas.

More guns.  Just what we need.

After all, there haven’t been enough headlines about Black lives lost at the hands of police, or stunning murders of white police officers as they protected Black Lives Matter protesters.

Please forgive my sarcasm. I’m frustrated.  Before this year is out, I’m sure there will be more tragic slayings, more outpourings of grief and recrimination, but still no movement toward sensible reform of gun laws.

And, amidst the din, there is little to nothing coming from feminist legal circles.

Two summers ago, Nation commentator Dani McClain argued that “the murder of Black youth is a reproductive justice issue.”  Her call to action came to mind when I saw the “Mothers of the Movement” during the Democratic National Convention.  The mother of Jordan Davis, who was shot for playing his music too loud, openly hoped for a time when membership in this “club of heartbroken mothers” would shrink.

I had been puzzling over this issue for a while, struck by the no-regulation-no-time stance of the National Rifle Association.  In the context of reproductive justice, many have argued with success that the state’s interest in potential life trumps women’s fundamental interest in bodily integrity (thankfully, with Whole Woman’s Health v. Hellerstedt, the Court finally has drawn a line over which states cannot cross).  Imagine if potential gun buyers had to jump through the same hoops as women seeking abortions. As district court judge Myron Thompson stated in Planned Parenthood v. Strange, the legislature would have “a heck of a lot of explaining” to do.

Hypotheticals aside, it doesn’t take much digging to see the gendered and raced aspects of gun violence.  An August 2015 survey by the Ms. Foundation for Women showed that violence is a top concern for women.  Firearms figure prominently in the domestic violence context.  According to the Pew Research Center, gun owners are predominantly male and white—they are 82 % of firearm owners.

So, in the next three blog posts, I accept McClain’s challenge and apply a feminist analysis to the issue of guns in the nation.  Given the medium, the exploration will be brief; but, I discuss it more fully in a forthcoming article upon which my posts are drawn, “Guns, Sex, and Race:  The Second Amendment through a Feminist Lens,” which will be published in the Tennessee Law Review.

The feminist lens that I’m using is one that is intersectional and rooted in feminist legal practice:  social justice feminism (SJF). SJF emerged from practitioners responding to the calls from women of color and other marginalized women to recalibrate the women’s movement with a focus on their needs.  As my colleague Kristin Kalsem and I have explained, SJF is about uncovering and dismantling social and political structures that support patriarchy, while “recognizing and addressing multiple oppressions.” SJF methodologies focus on historical context, structural inequities, intersecting oppressions and underserved populations.  In so doing, they reveal issues liberal feminism might fail to recognize as having gender implications.

SJF’s historical method looks to the past in order identify the roots of structural inequalities and dismantle them.  In this sense, SJF follows in the footsteps of feminist and critical race theory in seeking to uncover lost histories, elevate the experiences of marginalized people, and reveal how traditional historical narratives mask and perpetuate subordination.

In the posts that follow, I will apply this methodology to the Court’s decisions in Heller v. District of Columbia and McDonald v. Chicago, cases that relied heavily on a so-called originalist telling of history.  However, SJF reveals the context omitted by the majorities in both cases—one that helped lay the foundation for a race-and gender-based social hierarchy.

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Divergent Paths to Same-sex Marriage: What We Can Learn from South Africa

Last Sunday marked the one year anniversary of Obergefell v. Hodges, in which the Supreme Court ruled that excluding same-sex couples from marriage was unconstitutional. Obergefell was a huge development not only for the United States, but also for the world. Boris Dittrich, Advocacy Director of the LGBT Rights Program at Human Rights Watch, has predicted that Obergefell “will reverberate in many countries that still deny people the right to marry the person they love.”

As countries around the world draw inspiration from Obergefell, I hope Obergefell will not overshadow Fourie v. Minister of Home Affairs, another important case in the international arena. In 2005—nearly a decade before Obergefell—South Africa’s Constitutional Court ruled in Fourie that depriving same-sex couples of the ability to marry violated constitutional protections of dignity and equality. South Africa’s Constitutional Court became the first national apex court to decide that barring same-sex couples from marriage is unconstitutional. 

Many aspects of Fourie fascinate me, but in the confined space of this blog post, I will focus on just two. First, in comparison with Obergefell, Fourie offers a competing—and more compelling—conceptualization of the relationship between marriage and dignity. In Obergefell, Justice Kennedy endorsed a highly romanticized view of marriage as an institution that confers dignity upon those who enter it. “Marriage dignifies couples,” he said. “Marriage responds to the universal fear that a lonely person might call out only to find no one there.” He talks in grandiose terms about how “[n]o union is more profound than marriage,” and how being denied marriage is “being condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”

Many commentators have criticized Obergefell for implying that people must get married to be fully dignified. (See, e.g., here, here, and here.) What about people who don’t want to get married, or people who simply haven’t found the right partner to marry? Obergefell’s over-the-top romanticization of marriage marginalizes these segments of society.

For the record: I’m married, I love being married, and I love being married to a spouse of the same sex! But I also think marriage is not for everyone, and that’s one reason why I admire the Fourie opinion. No other judicial opinion on same-sex marriage has done as good a job as Fourie at explaining the relationship between same-sex marriage and dignity. Fourie makes clear that marriage doesn’t dignify couples. Rather, it’s giving people the decision whether to marry—and whether to marry someone of the same sex—that is most important to dignity.

To the best of my knowledge, Fourie is the only judicial opinion on same-sex marriage that has explicitly engaged queer and feminist critiques of marriage. The Court acknowledged that many same-sex couples might well choose not to marry if given the opportunity. Instead of denigrating that choice, the Court explained that “what is in issue is not the decision to be taken, but the choice that is available. If heterosexual couples have the option of deciding whether to marry or not, so should same-sex couples have the choice . . .”

The South African Constitutional Court also avoided over-romanticizing marriage by emphasizing that marriage rights are important precisely because marriages often fail. If a couple is married, the government will help the couple sort things out if and when they break up. “[T]he law of marriage is invoked both at moments of blissful creation and at times of sad cessation.” If you are not married, you cannot claim the legal protections of divorce.

I am currently writing a law review essay that elaborates on the difference between Obergefell’s and Fourie’s competing visions of marriage, and the ramifications of each view. Stay tuned! In the meantime, I’d like to turn our attention to yet another fascinating aspect of Fourie: the Constitutional Court’s decision to delay providing a remedy to same-sex couples.

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Dads Change Diapers Too

This is my third and final post about fathers as caregivers, drawing from some of my own experiences as a dad. (Earlier posts are available here and here.)

Father’s Day this year was really special because my husband, two-year-old daughter, and I celebrated on vacation in New York. We had a really lovely time overall. The trip was, however, also memorable because of this—have a look at this photo.

LaGuardia Airport, Terminal B, Concourse C

LaGuardia Airport, Terminal B, Concourse C

This is the United Airlines counter at LaGuardia Airport, Terminal B, Concourse C. I warily crouched down in the narrow space behind this counter to change my daughter’s diaper on the floor. I did it as fast as I could, feeling awkward about being there. I tried not to get in the way of the airline agents who were working behind the counter, and I shuddered at the thought of how dirty the floor might be.

My daughter and I were traveling home alone because my husband returned earlier for work. The agents at the ticket counter confirmed that there were no diaper changing facilities for fathers—no changing table in the men’s restroom, and no family restroom. The only diaper changing table was in the women’s room.

I suggested that I place my daughter’s changing pad on the table behind the ticket counter and change her there, but the airline agents said, understandably, that I needed to find someplace more discreet. The airport was bustling with people at every corner. After looking around, the agents offered to let me squeeze behind their ticket counter and use the cramped floor space there.

That was the best option we could think of. I didn’t want to subject my fellow travelers to the sight (and possible smell) of a diaper change, especially the folks who were enjoying their meals nearby. I also didn’t want my daughter and me to have to deal with the glare of onlookers. So, behind the counter we retreated.

Lack of men’s access to diaper changing facilities always makes me wonder what year we’re living in. Isn’t it about time we got behind the idea that men change diapers too?

Placing diaper changing tables exclusively in women’s restrooms is a problem because, as I discussed earlier, men’s access to diaper changing facilities is important to the health and well-being of the children we love and care for. Excluding men from diaper changing facilities also troubles me because it reflects and reinforces the outdated cultural assumption that taking care of young children is strictly a woman’s role.

Access to diaper changing facilities is particularly important at airports because waiting to change the diaper on the plane presents challenges. Not all airplanes have diaper changing tables. Moreover, parents are not permitted to get out of their seats to change a diaper during take-off, landing, and periods of turbulence in between.

Cities like Honolulu, Miami, and San Francisco have laws that give men and women a right of equal access to diaper changing facilities. State Senator Brad Hoylman has proposed legislation that would make New York the first state to require new and newly renovated buildings to give men and women equal access to diaper changing stations. I hope his bill will become law. Unfortunately, Governor Brown of California vetoed similar measures in 2014.

At the federal level, Congresswoman Tammy Duckworth of Illinois has introduced the Friendly Airports for Mothers Act, which would require airports to provide lactation rooms. I think it would be great to pass an even broader law that addresses diaper changing facilities in addition to lactation rooms. This could make airports friendlier not only to mothers, but also to fathers. In the meantime, I have contacted LaGuardia Airport to request that they install changing tables in all of their men’s rooms.

To be clear, the agents at the ticket counter were really kind to my daughter and me. The main woman whom I spoke with expressed her own disappointment with what she called the airport’s “double standard.” Let’s fix this double standard.

The good news for the immediate future is that my daughter has made great strides with potty training. I’m so proud of her! Our days of having to hide behind an airline ticket counter are numbered. Still, this is a bigger issue that needs to be addressed.

For more of my writing about fatherhood, please check out my forthcoming law review essay entitled “Shaping Expectations about Dads as Caregivers: Toward an Ecological Approach.”