March 2010 Archives

Week 10: Marital Rape

The question posed for this week (if marital rape would be more recognized in same-sex marriages) is a difficult one, least of all due to the fact that same-sex marriage is new to America. Questions of how different same-sex couples would fare (differing treatment of lesbian and gay couples) and the temperament of the judges would be the key to answering such a question. However, it is my opinion that there wouldn't be a substantial difference in determining if rape in a marriage was rape, at least from hetero marriages.

Marriage is still seen as a private institution, and little has been done to dissuade the notion that gay marriage is (in the states where it is allowed). As long as homo marriage is seen as a private affair, the courts aren't likely to intervene in it more then hetero marriage.

Hello Everyone!

The Aurora Center at the University of Minnesota was picked as one of the top programs in the country to combat sexual violence on college campuses. In honor of the 15th anniversary of the Violence Against Women Act, I invite you all to the event below. I hope to see you there,

TAC dept of justice smaller logos.pdfTAC dept of justice smaller logos.pdf

Week 10: Marital Rape

I believe that if we ever get to the point where same-sex marriage was legal, that it would encounter all of the same problems that Hasday cited. From my understanding of Hasday's article, the main reason that courts are reluctant to take a stronger position on marital rape is that the idea of marriage prevents them from doing so. Most people think of marriage as "The Perfect Union", and the thought of any violence occurring within marriage as offensive. So the issue is no longer the 19th century position of a man owning a woman and could do with her as he pleases. The fight is now against the idea of marriage itself.

The other problem is that, "Some [states] only recognize marital rape if it in- volves physical force and/or serious physical harm." The main way to identify rape (as dictated by the courts) is very hard to prove in the case of a homosexual couple or a heterosexual couple. Presumably, when a man rapes another man the results can be much more obvious and as such the bar may be raised on rape (E.G. a certain level of visible harm done to the survivor). For these reasons, I believe that even if marital rape were recognized in a homosexual couples, it would be just as difficult for it to be proven due to the same reasons as heterosexual couples. I would agree with Hasday in that society needs to change the connotation of marriage in order to make marital rape prosecutable.

Week 10

Expanding marriage rights to same sex couples may create a different outlook towards marital rape, but not necessarily the marital rape laws. Because of their professed impartiality, one could assume that judges would attempt to apply these laws to same-sex couples (if they were legally married). If the law happened to be applied more or less in the case of heterosexual couples, the judges could still assert fair application of the law.

Because marital rape no longer relies on the pretense of male ownership and instead argues for the preservation of 'domestic harmony', (Hasday 1380) it would be difficult to assert that expanding marriage would change the legal inequalities of the institution. However, deviation from this false norm may result in a shift of individual perceptions, raising consciousness regarding the inherent inequalities of marriage.

In the absence of a traditional dominance hierarchy, sex would no longer been seen as something obligatory owed to the man from his wife. If the most important result of sex within a marriage was no longer reproduction (as would be the case in homosexual married sex) perceptions of intercourse and rape might alter. If marital sex is redefined in the popular mind as something consensual, laws may eventually change to reflect this shift in attitudes.

Week 10

Courts would probably recognize marital rape more in those less traditional marriages. Courts might look at economic standings more in a case-by-case basis. While probably not as extreme in the past, one could be forced to marry in being trapped socioeconomically as Hasday notes (1400). The analogy of legal prostitution could be subject to more scrutiny. Courts might be more lenient on males because of their "morbidly developed" sex drives (1435). In less traditional marriages, this wouldn't apply as the discrepancies in sex drives would be on more perceived equal grounds. Hasday argues that privacy for marriage is encouraged to promote the harmony of the marriage, so that there would be a less likely case of "vindictive wives" (1488-89). This argument probably wouldn't hold in a case of same-sex marriage, especially if both parties were "nonwives" (not that the argument should hold in the first place).

Cases of rape in marriages without a husband and wife might have an impact in heterosexual marriage. Rulings based on socioeconomic class, sex drives, privacy, etc could be under better scrutiny because less traditional marriages would set a precedence. In arguing that one should not accept the precedence, one can argue a violation of equal rights (presuming we're in a world with legal same-sex marriage). Hasday cites a case where a divorce wasn't granted on the grounds of sexual cruelty because... "a large portion of married women assent under exactly those circumstances" (1504). Looking at a more varied set of marriages might lead courts to be more open to the idea that sex can be a consensual recreational activity rather than a duty of one to another.

blog 10

Assuming a context in which same-sex marriages are legal, I do not believe that the courts would be more likely to recognize marital rape. Hasday compares the 19th century women's movement with modern day movements and says that in the 19th century the fact that marital rape did cause harm to wives. However, in todays era, that harm is unacknowledged. This harm can not be confronted because we our supposed to be a country based on equality especially women's equality and uncovering the harm that is caused would also uncover the still existing inequalities. In a same-sex marriage, which is also supposedly based on equality, would even more so be subjected to keeping the harm that comes from marital rape hidden. The biggest key to keeping marital rape under the radar and especially applicable to same-sex marriages, is gender neutral rhetoric. Rewording the marital rape exempt laws to be gender neutral in language can, especially for same-sex marriages, be even more restricting as to where the law should intervene. Gender neutral laws tend to view men and women as the 'same' and as having interchangeable roles. This view gives courts the ability to assume less responsibility of the husband and disregard that men and women are different and are given different societal roles. In same-sex marriages, this neutrality could be even more unhelpful because the 'interchangable' roles that were presumed before are now strengthened by the fact that two women or two men are presented. Regardless of the intent of being gender neutral, laws rarely are, and since the neutral rhetoric lessened the perceived responsibility of the husband, chances are there will be even less responsibility given to either spouse in a same-sex marriage as there really will be no outward, or societal, differences because of gender. Also, courts generally have an interest in keeping the private 'private' which tends to allow inequalities and harm to continue. Hasday says that men who rape their wives permit a legal system that allows them to avoid prosecution so that they can reconcile wiht their wife later, in private. The state, in what it does not represent, protects itself in such a way that the negatives of these institutions, ie. reality, are not seen. I believe that privatizing same-sex marriages in the same way that heterosexual marriages are, detracts rights away from those individuals. In doing so, the courts can make an attempt to keep same-sex marriage out of the public eye so to speak. Also, much of the arguments proposed surround the wife, the women's right to have control of her own body and self. Women are portrayed as needing protection, both from their husbands and the state. The root of the problem is viewed as the sexual subordination that women are subjected to by men. In a same-sex marriage then, there would be no grounds for claiming inequality. Hasday references reformers that build off of the argument that women naturally have less sex drive as opposed to men who then need to be controlled. Again, this would be an issue in same-sex marriage rulings because it would further reinforce the assumption that husband and wife shared the same beliefs and wishes. The couple then being of the same sex, would even further demonstrate this concept. In conclusion, I believe that marital rape within a same-sex marriage would be viewed no different than, and probably less seriously, marital rape in a heterosexual marriage. Both the gender specific outlook and gender neutral laws have the potential and probability to backfire on marital rape in same-sex marriages. Also, as has thus far negatively impacted, or just confused, marital rape law; gender neutral wording would expound within the context of same-sex marriages. This would be a further detriment to the status and outcomes of marital rape exempt law in heterosexual marriages now by furthering the notion that gender does not come with context. Ignoring context with gender leaves us all looking equal. This percieved equality allows the state to step back and define these matters as 'private'. If we are equal, have interchangeable roles, and as a part of marriage share the same values; there is no need for the protection the law could provide.

blog 10

I do not think that the courts would consider same sex marriage as martial rape because they do not want to consider same sex marriage at all. also the courts do not consider marriage without a man and a women so they would not have to deal with the issue of marital sex mainly because they do not consider it in heterosexual marriage.

I think not having a husband and wife in a marriage has a big impact on how marriage rape is viewed with the courts because they see man as powerful beings that are allowed to do whatever they want in their marriage and to whom ever they want.
As far as same sex marriages go the courts might not see them as a threat.

Blog 10

I think that courts would be more likely to recognize marital rape in case where the spouses are not husband and wife. Hasday looks at marital rape and marriage in the 19th century. She talks about the roles of husband and wife and how sex is part of a wives role. Wives could not be raped because all intercourse they engaged in was consensual because it was part of marriage and men had a right to his wife's body. In a non-heterosexual marriage, preconceived gender roles do not really exist since there is no husband/wife dichotomy. A case where that dichotomy does not exist would eliminate any preconceived gender roles of husband and wife when it comes to sex in the marriage. Hasday also discusses reproduction throughout her article. Women did not always have a say in the reproduction of offspring and were often forced to conceive children against their will. Women were expected reproduce children; Hasda mentions that they were relied on for population growth. A non-heterosexual couple eliminates the whole reproduction factor since they cannot conceive through intercourse. Since reproduction does not rely totally on one half of the couple, then the decision to reproduce includes both members equally. Hasday discusses the use of gender-neutral language in laws at the end of her article. The use of this kind of language may help create interchangeable roles and deter judges and jurors from relying on norms surrounding gender roles of husband and wives.

Week 10: Hasday on Marital Rape

According to Hasday, courts would be more likely to recognize marital rape in a marriage when both the spouses are not husband and wife. Hasday talks about the history of the marital rape exemption in the 19th century and how women are not capable of being raped by a husband because being in a marital union is consenting to the "embraces" of her husband. In this case the line is clear, marriage between a husband and wife equals consensual sex because having a wife determine what she does with her body threatens the state. Hasday speaks about prostitutes in the late 19th century who are often referred to in rape cases. The prostitutes do have the right to prosecute a perpetrator and are granted full rights for this. I propose, and I am sure Hasday would agree, these women are granted rights because they do not threaten the state by not having a sustainable role in society (i.e. a lady) and by not bearing children that would be the future leaders of society. Marital rape would expand if the union was not between a husband and wife because it would not be as threatening in terms of children. In terms of heterosexual marriage, we can see this being problematic. Hasday speaks of past laws from the 19th century, but marital rape still exists and is still being spoken out against. If a union between a non-heterosexual couple can be granted more rights to prosecute their spouse for marital rape, then according to Hasday, we have not changed much in how we view the social order of today. The marriage union is treated as a private and covenant relationship, according to Hasday, that the law can ever-so-slightly intrude on because of the moral responsibility it holds (i.e. image of marriage between a husband and wife, children, etc.)

Week 10 Blog Assignment

In week 8, I asked you to consider arguments that expanding marriage to same-sex couples would change the inequality inherent in marriage. This week, I would like you to consider the same question with regard to Hasday's discussion of marital rape. Would courts be more likely to recognize marital rape in a marriage in which the spouses are not husband and wife? Might that then have an impact on how marital rape is understood in the context of heterosexual marriage? Be specific: look closely at Hasday's analysis of marital rape and consider which aspects of her argument apply to this blog question.
Suggested Length: 200 words

Blog 9

The public/private dichotomy has been around for a long time. There is the private sphere, which encompasses the home and the family. Then there is the public sphere, which includes the law. Issues of reproduction and domestic abuse are generally considered matters of privacy. We continue to consider these private matters because they are associated with the private sphere or the home. Having children is a personal choice of a woman and is considered private because of that and because it occurs in the privacy of the home. It is also considered private because it involves a woman's body and the right she has to her body. Domestic abuse occurs between a husband and wife and is considered private because of that relationship. This is evident in the article where Siegel discusses how it was a right for a husband to chastise his wife by beating her. The public/private distinction can be useful in regulation. When it comes to reproduction, it should be recognized as private since a woman has a right to her own body. Anything that threatens that privacy would then become public. Domestic abuse occurs in the private as well, but should be regulated publicly because it can interfere with women's freedom of choice and their rights to their own bodies. The struggle for bodily integrity for women should not be considered private just because of that. When something is interfering with a woman's bodily integrity through circumstances such as rape or abuse, then it needs to be regulated.

Public vs Private

There is no way to create a distinctly private or a distinctly public sphere of influence. The actions of an individual or body of government within one of these frameworks will have residual effects on the other. Only when these effects become prominent enough to attract the attentions of the ruling class, and only when that attention is negative, can change be implemented. Siegel made this point when she referenced Elizabeth Cady Stanton's speech regarding the residual effects of abuse on society as a whole. Women's reproductive rights/bodily integrity rights were only made public matters when the adverse affects of unregulated behavior came to the forefront of social consciousness.

There is an argument to be made that simply ignoring an action because it is considered 'private' could ultimately be detrimental to society as a whole. In the case of bodily integrity this is particularly apparent. The argument that all rights and freedoms must be codified in law, thus making them inherently part of the public sphere, is lent merit when one considers the adverse of effects of leaving these rights to be assumed under a 'private' sphere of influence. In Siegel's article, I think she makes a strong argument that to assume rights exist (as in the case of laws referencing 'domestic harmony' and 'the bedroom veil') allows for the possibility that those rights could be revoked. If this is the case, than nothing can truly be protected unless it is recognized by lawmakers, and protected within what is termed the 'public' sphere.

I believe that there is a distinct way in which the creation and existence of a private sphere promotes individual rights. If every action was open to regulation by the government, one would eventually see a breakdown of individual rights and freedoms. However, without some sort of framework detailing specific aspects of personal liberties within the private sphere, those freedoms are ultimately threatened.

Blog 9

I think people continue to preceive issues like reproduction and the family private because of the sexual aspect. People like to keep sexual behaviors behind doors. But they do not mind it if the public see's them pregnant, because being pregnant is seen as the most beautiful thing in the world that a women can do.

The private distinction is useful when considering the state because of, like the section on marriage and now the unit on "wife-beating" those issues are meant to be done behind close doors that the public should not know about. As we seen in class in one of our presentations your husband can not legally rape you.The state regulations helps that notion, with state laws and regulations.

I do think that the theoretical approaches we use in class are different than the privacy concept because the privacy concept is more of a personal issue and decision, that the state deems to be ok, whereas the approaches we use in class sometimes go against that.
I think the legal recognition of the women bodily integrity and self control should be up to the women, after all it is her body and she should have the right to have recognition of her body kept private or not.

Week 9 Privacy: Justifying Concealment

The notion of treating those issues as private stems from the traditional ideals of marriage, and then it is reinforced by appealing to the notion of privacy. In marriage, both parties contractually become "one." Treating marital issues as private provides the court a convenient rationale for enforcing ideals, ignoring the sensibility of said ideals.

Privacy is used more contemporarily to gloss over the issues at hand. It's a thorny word in that it has a positive connotation, especially in our culture. There are many issues where privacy for certain things can be a very good thing. It's hard for anyone to argue that they're against privacy, even if privacy by definition means "the condition of being concealed or hidden." The premising statement that, "Marital concerns are to be private" more lucidly raises the question if marriage should be private in the first place if, drawing from the definition of privacy, it is phrased, "Marital concerns should be concealed or hidden."

The usefulness of concealing these issues is suspect. The nature of glossing over such matters undermines feminist notions like consciousness raising. Siegel brings up the case of Siddle v. City of Cambridge where the court sides with the husband using reasons conventional with privacy (Siegel, 2194). The husband's actions of breaking into his wife's house and abducting her twice is justified by the court, suggesting the mental health agencies can rectify the situation better (even though the husband has been deemed sane in the trial). I hesitate to say that marital concerns should not be private, but I think a postmodern approach would be useful in circumstantially looking at issues like bodily integrity, self-control and, as other classmates have mentioned, pornography and domestic abuse.

Blog 9

When things are considered private, they are outside the realm of law. When issues are called private it gives the impression that we can do what we want but what it really means is that no protection is provided and we are actually controlled by social biases. The public/private distinction can be useful theoretically. It could be useful if laws given to the public sphere could extend in a liberal way to the private. However, does this erase the private sphere entirely? For example, family is considered private but when family violence arises, laws surrounding violence that apply to the public sphere should extend to the private family. Legally recognizing women's bodily integrity and self control as a matter in privacy also involves the overlapping of the public/private spheres. For instance, autonomy and freedom of a women's body should be considered private. However, when, or if, someone violates this, laws that apply to the public sphere should apply here too. The extent to which the legal recognition is percieved as private or public should depend on the context surrounding the woman. Other theorists, such as postmodern theorists, I believe, would be in favor of breaking down and redefining what the public and private sphere meant and entailed. Radical feminists, on the other hand, would most likely argue that this public/private system of law is primarily a patriarchal system that puts women under the private realm. This argument between public and private extends to many areas of conflict today including the issue of pornography. Like MacKinnon and Dworkin, other theorists have tried to bring pornography into the public realm of law so that it can be regulated.

blog 09 // privacy

Traditionally, privacy is a defense of personal life. A sort of means of keeping the law out of a particular aspect of life - since you have a right to privacy. By all means, feminist theory complicates that.
As Siegel discussed, privacy has become a means of excusing domestic violence - that the government can't meddle in the business of your marriage, for the sake of harmony. At the same time, it's obvious that marriage is a public institution, controlled by government. So, then, legal changes to protect wives have crossed that line of public and private.

On that note, I think that dominance theory addresses this well, because it connects individual experiences into a broader scheme - systematic problem. That is, really, making the private into the public, and what's more, it makes it changeable. In this way, it opens up legal reform and consciousness-raising. At the same time, equal treatment theory contended that women, just like men, deserve to be in the public "sphere" of life. And, with that, as women burst into the public sphere, so do the inequalities aren't supposed to exist in the public. All of these things contribute to how to change laws, as well as understanding the extent to which patriarchal laws cannot change.

Week 9: Privacy v. Public

Privacy seems to be an arbitrary right in America; the government insists on regulating everything from the definition of marriage to reproductive rights, claiming that women's sexuality, what she does with her body, and her reproduction are all elements of the state.

Throughout American history, as we saw in the Siegel reading, there are vast examples of the government demanding control over reproduction and the family, but only in some cases. For example, the reproduction for the state is regulated through marriage. Marriage is still defined as one man and one women, hopefully leading to reproduction. This is true, however, there are circumstances when the government will consider a matter private and turn its back on regulating certain matters. For example, Siegel speaks of wife beating as a perfect instance where the government takes part, but does not regulate. Pre 1970's, domestic violence was seen as a private matter because it concerned a husband and wife. In American government, this is a union that must be kept intact and preserved in all of their perfection and familial duties. Of course, this does not include domestic violence and if this boiled to the surface, the husbands (most of the time) were let off. By having minimal repercussions for the husband's actions, the government ensured the image of family, which was the more important than a wife or child's life.

When considering state regulations, it is helpful to look at certain issues as mainly private and public, but the mistake is made in not seeing an overlap. For example, wife beating was seen as strictly a private matter pre second wave feminism, however that still occurs today. But, with social and legal reform, many are seeing that wife beating may occur in the privacy of a home, but it will and does bleed into the public. It can lead to low productivity (if people are calling in ill so others will not find out), increase in other forms of violence (learned behavior), etc. The public and private distinction can be made, but not entirely.

I see distinctions between privacy, for example, in terms of radical and cultural feminisms. Radical feminism would argue that there is no private realm; everything is regulated by the public and for the public. Of course, the public being male patriarchy and the private being the victims, or the women. Cultural feminism would say that there are clear distinctions between private and public, but the privacy should be regulated through the understanding of an individual's own privacy (gender, culture, etc.)

The battle for women to have self-control and bodily integrity should not be a private matter. I do agree with Siegel that proper reform and regulation cannot occur unless these crimes are unveiled. It is an individual's choice if they choose to bring something from private to public, but this distinction would not be so great if topics (i.e. wife beating) of the private were not so stigmatized.

I see this matter that Siegel speaks about relating to other forms of sexual violence that are put in the private sphere and not regulated. I think of the example of pornography. We live in a country where we have the 1st Amendment which gives us the right to free speech. People can choose to have pornography and view it, but because the private sphere is so closed off from the public, society does not want to nor does it ever look at the way the violence reflected in pornography could seep into the public.

Law school symposium on Modern American Family 4/9

Extra Credit opportunity:

The Law School's Journal "Law & Inequality: a Journal of Theory & Practice" is hosting a day-long symposium on the modern American family on Friday, April 9. A detailed description of the topics covered can be found here:

and the schedule is here:

I encourage you all to attend any sessions that seem interesting or may contribute to your paper/presentation research. For extra credit (10 points) post a substantive description of the session that you attend (around 200 words).

Week 9: Privacy

Privacy seems to me to be a recent sort of phenomena. Only recently, I'd say since 1920s/30s, has there really been a notion of "privacy". With industrialization, finally enough people have collected in one area, and production of goods has exceeded need where privacy is ironically possible. Since the skeleton of our government is essentially 17th century, this creates an unforeseen problem.

Prior to the Industrial Revolution, there was much more of a focus on bartering, and community. After all, it only makes sense to live next to people who have what you need and vice versa, but not live with so many people that certain goods and services do not become taxed (e.g. doctors). As a result, smaller tight knit communities would be formed and people had a more intimate relationship than what we're familiar with by necessity. Moving past a bartering system, and to the Industrial Revolution, we find ourselves with a freedom to live where we want, but also a lack of community due to a reduced need for interaction. Because of these reasons, I feel that we live in effectively a different society.

The laws, as usual, have been lagging behind change in thought and in practice. This is reflected in the theories that we have been studying. The idea that people, while not being born equal, are entitled to a certain amount of respect and civil liberties is a thoroughly modern idea. Our laws still show an older, Victorian mentality of objective truths and hierarchies and a pseudo-science instead of our present day soft sciences. Instead of swinging wildly from one side to the other, we should work to refinement.

When first confronted with a previously unheard of level of privacy, akin to what the aristocracy had in the Old World, America decided to treat it here the same. The government had little say in what people did in their own castles. Thus, familial issues were left up the king of the castle and became "private matters". However, people forget that no matter how private and personal they think their actions are, they affect (and reflect) society as a greater whole, and with that recognition some "private" fell under public regulation.

I think that there needs to be drawn a quick distinction, and some terms defined here. Private and public, as I have laid out, are meant to show a couple of things. First drawn from my observations, Private means matters of family and the household. Private can also concern personal interactions between two people (or, maybe, a small group of people). Public is that which is defined and regulated by legislation or government agencies. I have noticed a severe gap between these two sectors, as well as overlap.

The most important thing is the gap. I believe that there is room for Individual legislation. In the current discourse, arguing for a woman's body to either be "private" or "public" comes off as inappropriate. Both of those terms, as I understand them, are too outdated and ill-equipped to deal with the issue of such things as bodily integrity and self-control. Those two things are more private than private, but still need to have some say in the public, because active participation in a society dictates as such. Being part of a society means that no matter how insignificant we think our actions are, we still have to recognize the ramifications and the impact of those actions upon everyone else, and the culture that we have created and participated in.

Which, to finally conclude this long winded post, is why theory is important. Theory is just exploring new territory before turning into practice. We need to understand culture and society, and how it changes in order to better change our laws to accommodate new beliefs in public opinion. We are more rich now than ever in free-time and the luxury to be introspective, so it is possible to modify (or even break free) or our archaic system and its trappings.

Week 9 Blog Assignment

Note: The last blog assignment should have been labelled Week 8; I have corrected post titles and category labels. Sorry for the confusion.

This week we begin the unit on bodily integrity with a reading on the history of domestic violence law in the United States and with our textbook's chapter on sex and violence. We will also study reproductive rights in this unit.
In her article on "wife-beating," Reva Siegel discusses how changing conceptions of marriage contributed to changing attitudes toward spousal abuse. As we will see when we read reproductive rights cases, the concepts of familial and sexual privacy played an important role in both spousal abuse and reproductive rights law.
In this week's blog post, I would like you to begin to consider the role of privacy in issues of gender and law. As we saw in our previous unit on marriage, matters that we consider private are subject to government regulation and public debate, and decisions that we consider personal are shaped by broad legal/cultural discourses. So why do we persist in perceiving issues like reproduction and the family as private matters? Is the public/private distinction useful when considering state regulation of such issues, and if so, how? Do you think that the different theoretical approaches that we are studying differ with regard to the usefulness of a concept like privacy? Should the struggle for legal recognition of women's bodily integrity and self-control be a matter of privacy? Can you think of other concepts on which one might base such a struggle?

Gay Marriage, Change, and the Law

Fineman's assessment that laws do not cause social change, but merely reflect it, is intimately connected to the conservative argument against gay-marriage. The fear of conservatives (that gay marriage will be legally recognized and legalized), reflects the eroding of their own base beliefs in the matter; if gay marriage is legalized and recognized, it means that their views on both society and the law have weakened.

As for the change gay marriage may bring, it is no different then the changes that marriage has endured over the millennium. A thousand years ago, the conservatives ideological ancestors would have been petrified by the idea of no-fault divorce, or a child-less marriage; a thousand years from now, they will no doubt be arguing about inter-planetary marriage between inhabitants of Earth and Mars. Change is a natural part of life and the law, and something conservatives seem to have a deep-seated fear of in general.

Related Article

After writing my blog I went onto Slate to see if Dahlia Lithwick, my favorite jurisprudence journalist, had written anything new. She had, and this article seems to fit perfectly with our readings this week. I just thought I would share!

Blog Post 8

The conservative argument that same-sex marriage threatens traditional marriage may have some validity. Without compromising my own beliefs, I might agree that the definition of traditional marriage (heteronormative) would fundamentally alter if same-sex marriage was legalized. I think the disagreement arises when you argue whether or not this is necessarily a negative result. Traditional marriage is a social institution (Hunter p. 16) that could be perceived as oppressive to women, especially in a historical context. There are individuals who may desire to enter into a relationship that resembles a traditional marriage. It is when you attempt to codify this belief as law that one perceives inequalities. This serves to propagate existing gender and social hierarchies of power between men and women. Using the religiously idealistic union of heterosexual intercourse as a vehicle by which legal rights are distributed violates the constitutionally guaranteed right of every citizen to equal protection under the law.

I believe that law is both a result of shifting ideologies in society, and that laws can cause social change. Approaching these conditions as mutually exclusive may endanger the perceived effectiveness of laws in general. I find myself agreeing with the theoretical approach of Hunter, in that the legalization of same-sex marriage poses a threat to gender systems; in this case, it would be a law that effects change. However, the realization of same-sex marriage as a legally recognized institution must be preceded by a certain level of desire for change and shift in social perceptions.

I found the dichotomy between formality and functionalism in Robson's article to be an interesting interpretation of dynamics within post-modernism. Robson's argument that functionalism perpetuates the idea of a 'normative' standard could prove useful when looking at other forms of post-modernist theory.

The other claim I found interesting was made by the Department of Public Health in Goodridge, regarding the "optimal social structure for raising children" (Goodridge, p.10) In a blog post earlier, I believe someone mentioned the inherent inequality of using reproductive ability to determine fitness for marriage. I would agree that unless the state is proposing required medical screenings prior to the issuing of a marriage license, this argument is without merit.

Blog 8

Last week in class I stated that I disagreed with Fineman that law never causes social change but rather can only reflect the current state of society. While I think law is neither the most efficient or meaningful way to enact social change, it seems to me to play a fundamental role in creating openings which cause social reality to be questioned. I stand by this belief, and think this is especially true in regard to the discussion over legalizing gay marriage.

Hunter and Robson both believe that gay marriage becoming legal would have force in altering the gendered state in marriage. My first reaction to the readings was shock at just how much the decisions in cases which they cited rely upon concepts of gender, in spite of the idea of formal equality which has been put into place as concerns marriage law. The Minnesota Supreme Court decision refers to the "fundamental difference in sex" - yet at the same time courts are having to deal with cases Robson highlights in which individuals have transitioned from one sex to another, making the difference in sex seem distinctly less fundamental. Those courts seem to deal with this fact by simply closing their eyes and declaring whatever someone's birth certificate defined their sex as at birth is what marriage law will continue to see them as: I'm picturing Judges sticking their fingers in their ears and singing "nananana I can't hear you!"

The crux of the issue of social change seems to come up in parallel to Hunter's note that "the terms of marriage as a legal institution have changed dramatically; it is the social power relations between men and women, inside or outside of marriage, that have changed much less significantly." While the current decisions against gay marriage seem so logically weak that it is hard for me to imagine that gay marriage will not become legal in the near future, the question is if this legal change would have any effect on those power relations based on gender. On a certain level, you have to imagine that attending gay and lesbian weddings, encountering legally married people of the same gender, and seeing the dynamics of such partnerships on a more daily level (not disqualified by their lack of legality) would cause many men and women to consider the dynamics of their own marriages. I can see gay marriage serving as a lens with which to reconsider what it means to be married. Such change would not occur the moment new laws were passed though, and you can be certain that as with formal equality, many will cling to the older definitions.

Blog 8

I am not sure where I stand on Fineman's statement about law and social change. I think that mostly laws reflect social change, but I can see how laws could create social change. Legalizing same-sex marriages could create social change by changing the definition of marriage and by changing gender roles. To answer the questions in the prompt, I think first it's important to explore the meaning of marriage. In my opinion there are two ways you could define marriage. Some people define marriage as the union between a man and a woman. Some people define it as just the union of two people in love. Changing marriage laws to allow same-sex couples to marry would in fact be changing the definition of marriage from the union between a man and a woman to just the union of two people in love. I think that down the line changing marriage laws will help to change the gendered definition of marriage and gendered roles as well. Hunter writes about how same-sex marriages can change gendered roles in marriage since there will not be a husband and wife. Hunter writes about how the titles husband and wife affect the roles of each spouse in the marriage. Same-sex marriage would help to change this method of assigning roles since gender roles will be broken down. Hunter also reflects on how same-sex marriages could change the concept of marriage and change the way we view social power relations in a marriage or relationship. These changes could then lead to a new perception and definition of marriage. I think that the legalization of same-sex marriage could create social change in the future by making roles in marriage less gendered and by potentially creating change in social power relations in heterosexual relationships.

Week 8

Fineman's argument that law cannot change society, that it merely reflects change, is disagreeable. It would be hard to argue that law changes society. One can cite laws that might have affected society in other places, like legal prostitution, gun control, or the legalization of drugs in other affluent countries. Those laws that might have changed society directly, but there's great difficulty in determining if society shaped those laws or if the laws shaped society. The relationship of laws and society seems too dynamic to argue either way. At least, there are some instances where one occurs and other instances where the converse happens. It is an overgeneralization to say that law cannot change society and difficult to say that law cannot change society. It is more accurate to say that, most of the time, law reinforces societies beliefs, which, though to a lesser degree than implied, is a changing of society.

Marriage as an institution would probably change if the focus were to change to how people perceive marriage. Also, change in meaning would also change as a result of changing marriage law. It doesn't have to be a dichotomy. Changing one will affect the other and vice versa. The conservative argument that same-sex marriage will destroy traditional marriage might not apply. Though I'm sure there are some changes that can be made if perceptions of marriage were to be altered, there is still the freedom for one to adhere to traditional marriage values without the need for the law to reinforce them. That is, the changes that the law can make if one wants to adhere to a conservative traditional marriage seems negligible.

blog 08 // marriage

I don't think that it's realistic to put too much stock in the law, and I certainly don't think that the law is more capable of change than people are. This, first of all, puts even more reliance on government structure and elite - we already have enough of that. And, we can never find enough change in laws. I agree with Fineman's statement, that the law reflects change, but, I think that is even being a bit generous; it is commonly a struggle to get the law to reflect change. It is obviously a useful apparatus because it provides some sort of concrete way of structuring or measuring activities, however. Postmodernist approaches can seem too theoretical at times.
The Nan Hunter piece demonstrated a combination of both a legal and postmodernist approach, i think. Her analysis of marriage, through both law and theory and reality, established the many ways that a change in marriage law would actually make a difference. Marriage is more than household rules, it's a solidification of gender, and naturalizes hierarchical roles. Legalization would tackle the normalcy or the automatic placement of gender rules. This would resonate, even if mildly, far beyond same-sex marriage. While the law here would not literally change patriarchy, it would, as Hunter said, destabilize it. In this way I was pretty convinced that such a law could actually change things, or at least be a step. With that, I don't think that the focus on change should only be on how people perceive law and society, because movements can't be based on abstract solution. At the same time, like I said, activism that simply hopes to change law isn't good enough. This is why I really enjoyed the Hunter reading - she explicitly says that change has to take place within and outside of the legal structure.

Blog 8

I believe that changes to marriage as an institution must come from changes in the perception of gender and marriage. I agree with Robson when she says that the focus on equal rights, or the focus on heterosexual intercourse as the definition of marriage, only reinforces normative meanings of what marriage should be. The functionalist approach mentioned is theoretically based on using "real" facts which should be a way to use laws to change things. However, basing rulings off of the reality of peoples lives is really basing rulings off of the normative idea of how peoples lives should be and so emphasizing heteronormative relationships and concepts. Goodman also discusses this as it is stated that reformers arguments are based off of the usual conservative "fundamental" marriage rights and not drawing off of how the courts have redefined marriage. This too reemphasizes the importance and normality of heteronormative marriages. Goodman further discusses how the meanings of marriage and gender must change first showing the innaccuracies of studies on children of various parental marital status' based on biases and manipulation. Because of this it is the definition of "rational", often used as a deciding factor in rulings, that must change before any law can change.

Also, even when certain rulings are made, they are not necessarily upheld or rational. The overriding emphasis on procreation which quite often does not allow same-sex marriages completely overlooks the fact that women who are not able to get pregnant are not interrogated about their 'fundamental biological' disposition nor is it a means to forbid a marriage between a man and a woman who is perhaps not able, or not want to, bear children.

Only changing laws is not effective unless the change in perception has come as well. Laws are manipulatable, are able to be ignored or twisted depending on who is using or abusing them. Hunter's theory is that legalizing same-sex marriage would drastically challenge normative ideas of man/woman and marriage. However, she stresses at the same time the importance of using different techniques than previously used. She believes that the law of marriage is based on gender categories and that "gender dissent" is needed to change the law and that legalization would disrupt gender norms.
Overall I agree, for the most part, with Hunter. While laws absolutely influence people and can change the direction of societies beliefs, I don't think that new laws, or intended function of new laws, can be used unless there is a fundamental change in perception of marriage and gender.

Arguing that allowing same-sex marriages will destroy traditional marriages is an example of both laws being a reflection of society and laws influencing social values. Traditional 'Christian' values have long been implicit in courts rulings although they have not always been outright said. These conservative values are generally reflected in laws and laws are often manipulated to fit those values. In the same way the laws that have been created originally based on conservative normative values reinforce those values through those laws.

The connection between societal values and laws is a circular system that reinforces the other. I do believe that laws influence people and in many ways controls people, in order for new laws to be created and effective, new meanings and perceptions of marriage and gender must be brought about in society.

blog 8

Yes, I do think we will see change in how marriage as an institution operates because the main force behind marriage (In this world) is how people precieve it. In getting married you have a big wedding and reception so that people (Who you love) will precieve your marriage in their own way wheather good or bad.

I also think that marriage law should incompass all marriages wheather man and women, women and women,or man and man. Marriage should be based upon love between two people no matter what the sex. So marriage law should be changed to incompass marriages for all people not just certain people (heterosexual).

There is a little battle with Fineman's contentation about how " law cannot change society but merely reflects change". if marriage law was changed to have same sex marriage legal everywhere, society would change and people would be more open with their partnership with their loved ones instead of running off to vages or canada to get married.

Blog 8: Marriage

After reading Hunter and Goodridge this week, it is quite evident that marriage is a socially constructed institution based upon socially approved ways of living. We, as a society, are more likely to see changes in how the institution of marriage is views in society if we do changes the way people view it. In Hunter's article, he states, "Marriage is, after all, a complete reaction of the law, secular or ecclesiastical" (Hunter 13). The idea of marriage, to some, is bound in religious purpose and beliefs. To others, it is a "reaction" to how our society is practiced and believed to be (monogamous, heterosexual, etc.) If we view marriage as a "reaction of the law," it is easier to see the flaws in it. For example, last week when speaking about viewing women and men as equal in divorce proceedings, we saw that inevitably these cases we unequal in a court of law which viewed the bonds of marriage as necessary for the family unit. Soon, roles of the parents began to be clearly defined and delegated by the courts. These roles then, according to Hunter, are not innate, but instead are reactions to the law that is currently set. If we focus upon how people perceive marriage, others will see the inevitable inequality present in the court and the social ratifications (such as gay marriage bans) that come from this.

In terms of the conservative argument, neither a change in meaning or legal change benefit is allowed. Marriage, to the conservative group, is something that cannot be changed in meaning and therefore, will not be changed legally. With the religious pressure defining marriage, a legal change cannot be performed and nor is their space for any social change in the marriage definition. Same-sex marriage, in my opinion and from reading the authors listed above, is an issue based more in personal opinion than legal matters. Same-sex marriage aims not just to achieve a legal equality with traditional marriages, but to be recognized the different interpretations to the word and practice of marriage. Of course, the law has the highest authority in granting these couples marriage licenses, but social pressures and resistance do have the power to push legal proceedings in a different direction than others have done.

Week 8 Blog Assignment

Last week, we discussed Fineman's claim that the presumption of equality between spouses in divorce proceedings has been harmful to women and children. This week, we are reading about efforts to expand and redefine marriage as a more inclusive institution. Hunter and Robson both contend that state recognition of same-sex and transgender marriage and other forms of intimate partnership could fundamentally change the gendered basis of marriage.
Keeping in mind the theoretical approaches that we have studied, consider Fineman's contention that law cannot change society but merely reflects change in light of the arguments posed in the Hunter article and in Goodridge. Do you think that we are more likely to see changes in how marriage as an institution operates if the focus is on changing how people perceive marriage (the postmodern approach), or is change in meaning one result of changing marriage law? How does the conservative argument that allowing same-sex marriage will destroy traditional marriage fit into the interplay between legal change and change in meaning?
I want your opinion, but please base your argument in the texts that we are studying.

Suggested length: 200 words

The Values and Dangers of Historical Perspective

In my opinion, historical appeals are a lot like any other theoretical lens - a useful but imperfect tool that ought to be handled with care and not used exclusively. I think this point is well-demonstrated by this weeks readings, which all used history in order to explain and support significantly different arguments involving race and marriage. The value of historical perspective is that it offers consistency in regard to law - thus the use of precedent in both the Loving case and the Samuel case. However the danger is that just because something is precedent does not mean it is right. Historical perspective, while useful in explaining the evolution of social realities, does not include the necessary moral claim for an argument of law.

Week 7: History

Well there is an obvious flaw in arguing from history, which is that it is an appeal to authority. Precedents are nice, because they reflect (supposedly) a commonly held belief of the time. Instead of having to state something over and over again, it can be easier to refer back to a similar case. Arguing due to the ruling being right, rather referring out of convenience is where the problem arises. By assuming that once a ruling has been made that it is not only right, but also right for everyone, the progress of justice has become stagnant.

Furthermore, I think that it is important to always be critical of an argument that defers a unique judgment to another case. While another case may be relevant, it inherently denies the context and the idiosyncratic nature of a perpetrator's motivations and needs (in terms of rehabilitation, or punishment). Even by an objectivist's own standards, being meted out justice on some else's terms is just illogical, as well as not just.

That is not to say that making an argument from history is always wrong. As previously stated, if one case is similar to another case, it would make sense to save time by utilizing the previous case as an example. One must be wary, though, of how dated the case is. The more time that passes, the less (I believe) that the previous case is relevant. It is important to try to maintain similar context.

BW7: History

While I don't believe we can rely on any specific person's account to create an all-encompassing picture of historical events, I think historical documents and interpretations are useful when considering possible modern day practices. Apprising a person of the past helps them judge the present and the future. As a tool within other disciplines, history provides insights about the workings of the world and humankind. That may be a bit broad, but I don't believe any academic discipline can exist without a historical reference point.

Postmodernism would disagree, I believe, with placing this amount of importance on history. According to the postmodernist, real objectivity is unobtainable, and thus a true reality cannot exist. I agree that every fact presented as irrefutably 'historical' can be approached from a different perspective, subject to the biases of the individual and the context in which it is being relayed. One cannot regard any historical account as complete and objective.

The reality of the subjective nature of history and historiography questions what role past events should play in shaping our actions. As evidenced by State v Samuel, continuing a course of action just because it has been the norm in past years can perpetuate racism and other forms of social inequalities.
History should not act as a literal guide to what should be done, but rather, inform as to what has been done, could be done, and how we should judge the future.

Response to Week 6 Blog-Ben's Midterm paper

Neat Ben. I am doing the same topic and my areas of focus are pretty similar to yours.

Week 7: History and the Authority of Consistency

History can be a useful tool for persuasion or as a way to gain contextual insight. It can grant some form of empiricism for subjects that might be too vast or complicated for a normal research methodology. As such, while it has its uses, it can also be used irresponsibly.

Precedence, that is, using the history of past case judgments, can be abused as a source of authority in law. Before Loving v Virginia, miscegenation has been justified through precedence from the Pace v. Alabama case where it was deemed reasonable to discriminate because the punishments applied equally to whites and blacks (or other minorities). While it is within the realm of practicality to treat one situation the same as another if they are justifiably similar, consistency can also have pitfalls if there is already a hierarchy in place as highlighted by Feminist Dominance Theory. The idea of consistency should be encouraged. Evidenced by Pace v. Alabama, the propagation of fallacious logic using consistency can be dangerous.

Postmodernism can be useful in utilizing a responsible use of history through encouraging conscientiousness of the subjectivity of society and its dynamic course through time. A postmodern view might have made arguments against miscegenation more receptive. Most importantly, it can make one be more wary of relying on the authority of historical consistency by taking into account biases of the authors of history. Because some ideas in history, like racism, is anachronistic, it's easy to demonize such things and toss away the importance of recognizing such institutions because it has been such an integral part of society. 50 years from now, there are things that we're subjected to everyday that our children's children will demonize us for: we can only hope for the best and not give up.

Blog 7

I think that relying seldomly on historical content is not a good way of getting a valid information on issues. Especially for black women and black people in general because history has portrayed blacks as something other than what they actually are. So if you were to rely on what history has written about blacks you would get a distorted view of what black people are.

Because of history many people have a prejudged notion of what black people are capable of and how they act. Many stereotypes about blacks have came from histroy. So again I would never only rely on history, because it is not always the solid truth, its like the bible; it comes out with a new testiment every year based upon what has changed or evolved over that period of time.

blog 07 // historical perspective

I think that history is a method of understanding and analyzing, most importantly. And learning from history, as cheesy as that sounds, is probably the greatest use of it. Though that can be misconstrued and definitely has complications. With that, I think the most dangerous aspects of history are found in whose history is being represented, and the over-reliance on this history.

As pointed out in the Omolade reading, faults and loopholes in history are largely due to a lack of acknowledged perspective. It is this way that I think history becomes unreliable; in neglecting the viewpoint of the population being studied. In the understanding of single black mothers, their own experiences are rarely taken into account -- only the implications of their sexuality and parenting.

I'm weary of any method of depending on history, because that makes me think of using history as a crutch, of hindering progress. The State v Samuel case demonstrated this, i think. It simply recited the way things were as justification for the why they had to be that way. There is a difference between hinging an entire argument on the fact that it has existed for a while, and in using the history of something as a means of analyzing it's implications. And, with that case, it is just as important to look at whose history it is... obviously those that have interest in defending past methodology. That being said, I love history, and would never disregard it's importance; it just needs to be utilized appropriately, and needs to be a similarly appropriate lens of history.

Blog 7

History can be very useful in the study of many different things. In this case, it may be useful to look at history when studying interracial marriage. History can be valuable at times, but it can be dangerous as well. As evidenced by the Omolade article, history can be used to better our understanding of a group of people and how they came to be where they are today. It can also help to demonstrate change over time. On the other hand, history can be dangerous. One of the things people need to consider when they are reading a piece of history is the author. The writer of a history can affect the way in which a person reads that history. Also, the writer of a history can alter what the history relates. For example, the writer of the court case summary for State v. Samuel was a wealthy, white man. He is writing about the legitimacy of a marriage between two black slaves, a marriage he knows nothing about. He probably does not know about or understand slave culture, so his account is not reliable. If a former slave had written this opinion, then it would probably read very differently. Another danger of history is that it often leaves out the stories of oppressed people. For example, history books often leave out or include very little about women, children, slaves, and other oppressed groups of people. Furthermore, readers should determine whether the history they are reading includes any opinion or if it just includes a description. The opinion of the writer in an article might offer a bias and may change the way the reader studies it. Readers of history should be careful to rely on what they read. They need to remember to take into consideration the identity of the writer and his or her perspective on the piece of history they are engaging. Readers also need to remember to look for any bias on the author's part.