Over the semester, we have studied a wide range of legal issues that impact women, some historical and some very current, and we have examined a range of feminist approaches to understanding and combating unequal treatment of women. In your blog post, I'd like to get feedback from you on the topics that we covered. What was most interesting, or surprising, or confusing? What legal issues, if any, would you like to have studied that were not on the syllabus? Which topics were most useful to you in terms of understanding your own legal rights? Are there topics on which we spent too much time, or not enough? Your honesty is appreciated; I hope to teach this course again, and your input will help me to improve the course going forward.
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This week we are reading several cases on employment discrimination. As we briefly addressed in class on Thursday, these cases often turn on whether sex is determined to be a bona fide occupational qualification. Such a determination is not always clear to the courts, nor do feminists always agree on these questions.
In this week's blog post, I would like you to once again revisit the strains of feminist theory to which we continually return: equal rights, cultural, and dominance feminisms. Think about a job that you or someone who know has had. What are that job's qualifications? What characteristics must a person possess to succeed at that job? Is this job male or female-dominated (for information on the gender breakdown of a vast range of jobs, see the US Census Bureau's website). Are the characteristics associated with success at this job typically associated with men or women? Is there a particular feminist approach that is helpful in analyzing the gendered nature (or lack thereof) of this job?
As always, be specific in your references to course readings that you used to complete this assignment.
I was vaguely surprised to find that Coverture was still used in the wording of Section 519.02; after all, it's effectiveness and use as a legal term has effectively been nullified with section 519.01 (which allows women to have a separate economic existence). The reason coverture is still used, in my opinion, is as a throwback to older terms that lawmakers are loathe to let go of. Should the word coverture be removed, then?
In my opinion, it should; even if it has no legal effect, it is still a shameful reminder of America's historic inequality to women. By removing it, the formalization of human rights for women can be formalized, and a legal error can e removed from the law books.
As we discussed in class on Thursday, Section 519.02 of the Minnesota Statutes describes the property rights of married women "during coverture," retaining the wording of Minnesota's 1869 Married Women's property Act. Yet Section 519.01 explicitly states that a married woman has a full legal existence distinct from her husband. So why does 519.02 retain the word coverture?
For this week's blog post, I would like you to consider whether this retention of coverture in Minnesota law has meaning and effect. If you choose, you may write your blog post in the form of a letter to an appropriate member of Minnesota's government to argue for the removal of the reference to coverture. Be specific in your post; support your argument with references to readings from the course. You may want to refer to the website for the Office of the Revisor of Statutes for information on how bills and statutes are written in Minnesota.
The right for a woman to choose whether or not to have a abortion has been under assault since before it was even legal; the rights of women, the right to privacy... all were taken under consideration for Roe v. Wade. Today, abortion is still under attack, utilizing ever-more clever means and ever more idiotic opponents. The question of the week is whether scholars of law or elected officials would better defend abortion.
Unfortunately, elected officials are in a far better position to defend the right to choose; despite the questionable level of morality and knowledge, they are the only ones in the position to actively influence the vote; scholars are lucky to have their voices heard over sound-bites. Hopefully, the right to choose will become ingrained with the elected officials acceptance of it, so that it need not be defended so vigorously.
This week, we conclude our examination of reproductive rights with several Supreme Court cases. In our discussion on Griswold and Roe, we briefly addressed whether the power to limit the scope of reproductive rights should belong to the courts or to elected government. In your blog post, I would like you to consider this issue further. Keeping in mind the feminist theoretical frameworks that we have used throughout the semester and in particular Dorothy Roberts' discussion of liberty, do you think that women's interests are better protected by elected officials or by constitutional scholars? What are the advantages and disadvantages of having the Supreme Court determine the scope of reproductive rights for women throughout the country? If you were setting the agenda for a reproductive rights organization, would you focus on local, state, or national legislation, or would you focus on the use of courts?
The ideas outlined by Siegel and Hasday on the justifications for government non-involvement in marriage (that it is a private issue, and it's sanctity must not be broken) and birth control (that the government must control the birth habits of women to protect the children) expose a contradictory set of behaviors on the part of the United States Government; respecting privacy part of the time, and disrespecting it at other times. Obviously, there are problems with this approach; it is hypocritical, and establishes a disturbing precedent for governmental behavior. How can the contradictory behavior be justified?
The easiest and simplest answer is hypocrisy on the part of the government; it would not be the first contradictory series of actions the United States has taken, and it will not be the last. A more complex one, however, would be that involuntary birth control is a extension of a already existing system of the government, Child Services. After all, unfit parents have children taken away from them; why not go a further step and prevent the unfit from having children at all? Simply put, involuntary birth control is the logical and dystopian next step along the path of more efficient government.
This week, we begin looking at reproductive rights through readings by Margaret Sanger, a pivotal figure in the campaign for developing effective birth control, and Dorothy Roberts, whose book Killing the Black Body describes in detail the racist foundations of the birth control movement and subsequent US government campaigns to control black women's reproduction.
In this week's blog post, I would like to consider connections between last week's readings on marital abuse and this week's readings on reproduction. Siegel and Hasday identify a number of strains of thought that have been used to justify governmental noninterference in marital relationships, and they outline the arguments that 19th and 20th-century feminists used to establish legal recourse for victims of domestic abuse. Yet the history of birth control is a history of government interference in intimate decision-making. So how can these two contradictory state attitudes co-exist? What evidence do Sanger and Roberts provide that might help to explain these simultaneous and apparently contradictory attitudes? It may be helpful to review our readings and discussions from the unit on marriage law.
Suggested Length: 200 words
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.
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
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?
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.
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
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.
All of the readings for Tuesday- State v Samuel, Loving v. Virginia, and the Omolade article, discuss the history of race and racism and legal regulations regarding race and marriage. One court uses a historical approach to justify racism; another addresses history in order to distinguish the present from the past; and Omolade provides a historical overview in order to argue for a particular way of understanding Black women's familial roles.
Given these three distinct uses of history, and keeping in mind the theoretical approaches that we have studied that call for awareness of historical specificity, I would like you to consider the value and the dangers of relying on history to support an argument. How can we determine whose history is reliable? Should we be suspicious of all reliance on history? What can we learn from an author's attitude toward history?