Thursday, January 16, 2014
Gender Diversity and Same-Sex Marriage
The recent district court decisions regarding same-sex marriage in Utah and Oklahoma have drawn a great deal of attention in the past few days. The Tenth Circuit is a particularly interesting venue for adjudication given what we might infer about the ideological composition of the court. Currently the court has five Republican appointees and five Democratic appointees, but just today nominees Carolyn McHugh and Nancy Moritz were voted out of the Senate Judiciary Committee, which would make the court seven-to-five in favor of Democratic appointees. While I don't want to overstate the importance of a nominee's political background -- which I think has sometimes been exaggerated in the same-sex marriage cases -- the potential new additions to the court would create a particularly engaging scenario were the Tenth Circuit to take the case en banc.
Rather than retread ground others have covered, I want to focus on a particularly odd argument that the state of Utah recently raised in its brief to the Supreme Court requesting a stay of the district court's judgment pending appeal. Utah makes three arguments. The first two are familiar to everyone who has followed the same-sex marriage cases: that "traditional marriage marriage reinforces responsible procreation" and that "children generally fare best when reared by their two biological parents in a loving, low-conflict marriage." Others have addressed -- and in my view, pretty thoroughly debunked -- these arguments.
The third argument might charitably be described as more creative. The state argues that "society has long recognized that diversity in education brings a host of benefits to students," and "[i]f that is true in education, why not in parenting?" If I read the brief correctly, the idea is that having one male and one female parent will provide children with benefits that surpass those provided by having either two male or two female parents. As the state puts it: "the combination of male and female parents is likely to draw from the strengths of both genders in a way that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children" (emphasis theirs).
The first problem with this argument is that it relies on unexamined assumptions about gender. What, exactly, are the "strengths of both genders"? What strengths do women inherently have that men inherently lack? What strengths do men inherently have that women inherently lack? Within any two-person relationship, of course, the people involved will have different strengths. But these strengths map very loosely, if at all, onto gender. One can find both men and women who possess any conceivable personality trait, and who engage in any given part of the spectrum of child-rearing responsibilities. Some men are more nurturing than their partners, and so are some women. Some women are more aggressive than their partners, and so are some men. Some women stay home with their children, and so do some men. Some men cook and do dishes, and so do some women. Some women fix cars, and so do some men. All of this is potentially valuable in a marital or parenting arrangement. But none of it is inherently associated with gender. And so there's no reason to assume that a diversity of parental attributes is more likely to occur in an opposite-sex marriage than a same-sex one.
The second problem is that the "traditional marriage as gender diversity" argument draws an inapt parallel between education and marriage. Even if we agree that diversity is a good thing in education, that doesn't mean that the same holds true for marriage. Admitting a class of students involves bringing together hundreds or thousands of people with different characteristics and different life experiences. No individual student is presumed to bring any specific quality to the table based on gender, race, sexual orientation, class, or other attributes. Rather, in the aggregate, a diverse student body provides benefits because bringing together enough people from different backgrounds improves the learning experience. In contrast, marriage is simply a different endeavor. At least as the state's brief envisions it, marriage involves only two people, and the claim that traditional marriage promotes gender diversity inherently requires a presumption that men will behave one way and women another.
The argument is also poor strategy. Several of the justices on the Court are openly contemptuous of diversity as a rationale for affirmative action. In Grutter v. Bollinger, for example, Justice Thomas slightingly described diversity as "more a fashionable catchphrase than it is a useful term," and a school’s interest in diversity as an "aesthetic" desire to "have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them." These are not exactly the words of a justice looking to provide additional support for the diversity rationale by tethering it to arguments against same-sex marriage.
And finally, it seems to me that the argument works far better as an argument in favor of certain types of relationships that lead to non-traditional parenting -- specifically, polyamory and parenting arrangements that involve more than two people. Assuming for the sake of argument that two people of different genders bring different qualities to the table, and that this is good for children, wouldn't it be even better for a child to have three parents? Or five parents? Preferably with at least one parent who rejects binary notions of gender, and chooses to identify as neither a man nor a woman? If we assume that Utah is right about the benefits of gender diversity in marriage, it seems to me that such parenting arrangements would provide even more of the gender diversity benefits that Utah envisions. But I seriously doubt that this line of reasoning is what Utah intends.
In short, this argument seems like a pretty bad one -- at least insofar as it's intended to support a prohibition against same-sex marriage. And perhaps it's an indication of exactly how far marriage equality opponents are reaching these days to find support for their position.
Sunday, June 30, 2013
Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?
This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.
Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.
The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoff have also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.
The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement.
But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)
Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?
That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.
Posted by Addie Rolnick on June 30, 2013 at 03:17 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (4) | TrackBack
Saturday, June 29, 2013
Adoptive Couple v. Baby Girl (1 of 4): Why the Court’s ICWA Ruling Matters
I’ve been a quiet guest this month, but this post (part 1 in a 4-part series) has been germinating a long time. Indian country issues get very little press (academic or otherwise), but when the occasional case is more widely followed, it can surface misunderstandings about Indian law and history and deep-seated anxieties about how Indian rights mesh with other areas of law. During my last guest stint here, I addressed this phenomenon in posts about the widely-debated Santa Clara Pueblo v. Martinez case and the Supreme Court’s 2012 holding in Ramah Navajo Chapter v. Salazar. I’m particularly concerned with how these crossover cases make their way into law school classes and legal scholarship not typically focused on Indian law, and I hope professors who incorporate these cases will find some of my observations and links useful.
Adoptive Couple v. Baby Girl, a major Indian law decision that has been nearly buried among the responses to Shelby, Fisher and Windsor, is one of those cases. It is a case about the language, history, and intent of the Indian Child Welfare Act, but the statutory issues have been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series, co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the posts are a product of our collective views. Here, we address the holding and its immediate significance. In later posts, we will address the lurking issues.
What Exactly Is the Indian Child Welfare Act?
The Indian Child Welfare Act is a federal law that sets particular procedural rules that must be followed before parental rights can be terminated over a child who qualifies as “Indian.” The law was passed in 1978 to counter generations of forced removal of Indian children from their homes and communities, first via federally-sponsored assimilationist boarding schools and later via state child welfare systems, which removed Indian children from their homes at alarmingly high rates and placed them with white families, which were perceived to be better than their home communities. (This history is described in detail in an Indian law professor amicus brief filed by Stuart Banner and Angela Riley at UCLA.) The law does many things, but most important in this case are the procedures that state courts must follow if an Indian child (defined as as one who is “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”) comes before them in a foster care, parental termination, or adoption proceeding. These include notifying the parent and the child’s tribe, giving the tribe the opportunity to intervene or to assume jurisdiction over the case, setting a high evidentiary and procedural bar before parental rights can be terminated, and, in the event of removal, placing the child with a relative, a family from the same tribe, or another Indian family if at all possible.
In the only other ICWA case it has ever heard, the Court recognized that the law is primarily concerned with connecting tribes and children by strengthening tribal governments’ control over the placement of their children and by recognizing that the “best interests” of Indian children include maintenance of their tribal ties. (On the issue of what is “best” for adoptee children, read the amicus brief filed by pre-ICWA adoptees. The common complaint that the child’s best interests are “overridden” by the tribe or by federal law misses this aspect of ICWA; it recognizes that protecting the relationship between tribe and child is in line with, not antithetical to, the best interests analysis). That case, Mississippi Band of Choctaw Indians v. Holyfield, also involved a voluntary adoption in which the birth parents intentionally left the reservation in order to have their children adopted through state court to a white couple. The Court held that the statute required that the tribe have jurisdiction over the case, effectively refusing to allow individual Indian parents to circumvent the larger purposes of the law. Justice Scalia was in the majority in Holyfield, and he later described the decision to “turn that child over to the tribal council” as “very hard” but clearly mandated by the law. Justice Scalia’s characterization makes it sound as if the children were cruelly ripped from their adoptive home and returned to an opaque pit of corruption. What most people don’t know is that the Mississippi Choctaw tribe, after accepting jurisdiction and considering the best interests of the Holyfield children, eventually placed them with the adoptive family the parents had chosen, but required the parents to maintain contact with the children’s extended family and tribal culture. One lesson of that case, then, is that following federal law and respecting tribal jurisdiction doesn’t mean children won’t be properly placed in loving homes.
Baby Veronica, as she is known, is the child of a non-Indian mother and a Cherokee father, Dusten Brown. (Indian Country Today has a nice 4-part series on the family involved in the case. The first article is here and the last article, with links to the earlier ones, is here.) Her mother placed her up for adoption through a private agency and chose the Capiobiancos, a white couple with professional careers and advanced degrees, who have been referred to in most of the media coverage as “ideal” parents. As the court noted in the first footnote of its opinion, there was never any question that Veronica was an “Indian child” involved in a “child custody proceeding” - exactly the situation that would normally trigger ICWA’s requirements. The mother knew Brown was Cherokee, but she and/or her attorneys made several misstatements along the way (requesting information about enrollment using the wrong name and date of birth for Brown, listing the baby’s ethnicity as Hispanic on interstate transfer forms), and so the tribe was not involved. But the petitioners argued that because Brown failed to pay child support and did not have custody of Veronica, he had essentially abandoned her and therefore was no longer a “parent” under the law. With no Indian parent, they argued, there was no basis for applying ICWA.
This, of course, is precisely why ICWA matters: under state law in South Carolina, a father who has not actively parented (i.e., paid support, been actively involved in child’s life) has no right to object to an adoption, but ICWA superseded state laws to institute a uniform, more stringent standard in cases involving Indian children: parental rights cannot be terminated and Indian families cannot be broken up unless active efforts have been made to keep them intact and the parent has been deemed beyond a reasonable doubt to be unfit. (Voluntary relinquishment under ICWA requires a written order entered before a judge, which did not happen here.) Both the state family court and the supreme court denied the adoption, finding that ICWA’s standards for involuntary termination of parental rights (stricter than state law) had not been met. The question before the Court was whether ICWA should apply at all.
How the Court Narrowed ICWA
It is important to say here that the Court did not invalidate any part of the statute. It simply held that a non-custodial father cannot invoke ICWA’s protections. (Justice Thomas’ concurrence, on the other hand, inexplicably asserts that Congress has no power to supersede state law where Indian children are involved.) The majority (Alito, Roberts, Kennedy, Thomas and Breyer, whose concurrence is more limited) read the law as concerned primarily with involuntary termination proceedings in which state social workers come into Indian families and remove children. A non-custodial Indian father invoking the statute to counter the voluntary adoption initiated by a non-Indian mother seemed to the majority to be outside of the law’s scope. In the majority’s view, this case was not about “the breakup of the Indian family” because the only Indian parent was not actively parenting the child at the time. In other words, there was no Indian family to break up. The Court remanded the case to state court after holding that ICWA does not apply, but it did not order that Veronica be returned to the Capiobiancos. The state court must now decide, applying state law, where to place her.
(The majority also held that ICWA’s placement preferences did not apply because no other prospective adoptive parent was put forward by the tribe. This is disingenuous; no other placement was suggested because Brown’s extended family and the tribe supported Brown’s efforts to retain custody. The dissenting opinion points out - correctly, in my view - that the Court cannot rule on the placement question preference question before it has arisen, leaving room for the possibility that a relative could seek custody on remand. Justice Breyer, in his concurrence, suggested that Brown could be considered as a prospective adoptive placement if his rights were terminated.)
The blow struck by this case is significant. As the Court recognized in Holyfield, ICWA is about preserving the relationship between an Indian child and her tribe. The tribe has an interest in its children that may be separate from the interests of the Indian parents. The child’s interests are likewise served by maintaining a connection to her tribe and her extended family, even if she no longer has a relationship with her parents. In this case, the Cherokee Nation supported Dusten Brown’s effort to regain custody, but tribal intervention does not always (or even usually) mean returning the child to her Indian parent. By focusing so much on the father’s actions in the case, the Court has allowed tribal rights to be subsumed by an individual parent’s lack of responsibility. This is precisely the opposite of its holding in Holyfield, and it significantly undermines the spirit of the law.
For what it’s worth, I am a non-Indian mother of Indian children. Were we to consider giving our children up for adoption, or if they removed from our care, the ICWA’s procedures would come into play, possibly limiting our preferences about where we would want the children placed. I don’t consider ICWA’s recognition of a relationship between child and tribe to be an unfair burden or a barrier to pursuing my children’s best interests. As the Court recognized in Holyfield, but completely failed to acknowledge in Adoptive Couple, the two are closely linked.
Posted by Addie Rolnick on June 29, 2013 at 03:12 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2) | TrackBack
Thursday, June 13, 2013
Selling Made-To-Order Embryos and the Split on the Right
The New England Journal of Medicine will soon have in print an essay by Eli Adashi and I on the sale of "made-to-order" embryos. The article "Made-to-Order Embryos for Sale — A Brave New World?" has been online for a while already and concerns a recent development in the reproductive technology industry. As we put it:
The proliferation of commercial gamete sources (e.g., sperm and oocyte banks) has opened the door to a made-to-order embryo industry in which embryos are generated with a commercial transaction in mind. This prospect of a for-profit embryo bank is no longer theoretical. Indeed, as recently as November 2012, the Los Angeles Times reported on one such clinic that “sharply cuts costs by creating a single batch of embryos from one oocyte donor and one sperm donor, then divvying it up among several patients.” The report went on to state that “the clinic, not the customer, controls the embryos, typically making babies for three or four patients while paying just once for the donors and the laboratory work.”
Our essay reviews the legal regime that governs it (short answer, in most states it is not illegal or even regulated) and then considers the ethical premissibility of this practice. We examine objections to the practice premised on crowding out of embryo donors, the exploitation or undue inducement of donors, the corruption of reproduction (this is sometimes called "commodification" thought I think that term represents a broader set of arguments, so I use "corruption" in my work to capture the value-denigrating objection specifically in its intrinsic or consequentialist form), and the furthering of eugenic objectives. Throughout the short essay our argumentative strategy is to press on whether this new practice is all that different from existing practices, epsecially the sale of sperm and egg which individuals can themselves put together to create embryos for reproductive use or to destroy in the generation of embryonic stem cells as well as the practice known as 'embryo adoption' or 'embryo donation.' The thing we think is newest here is actually issues related to lack of guidance on the parentage and ownership of embryos in the event of clinic bankruptcy, changes in minds by the donors, or dispositional conflicts (though John Robertson has suggested the law may be more certain than we posit).
The article is short, limited to 1500 words, so obviously we couldn't tackle everyhting. What has been most interesting to me has been a split of opinion on the article in the righter wings of the blogosphere.
The American Enterprise Institute published commentary on our article "'Walking the Ethical Edge: Made to Order Embryos Address Genuine Needs'" beginning with a view that we own our own bodies and pressing on justifications for prohibiting voluntary transactions, concludes our article "offer[s] a thoughtful guidance through the ethical thicket of embryo donation," and that "arping about or in some cases ignoring the failures of the current IVF system, seems the preferred choice for those opposed to even debating the benefits and challenges of a for-profit embryo market. Unless we as a society are determined to reserve the right of reproduction by infertile couples to the wealthy, we should welcome options."
By contrast, the National Review Online has an article "Made To Order Commodities Market" with a more negative reaction. The author claims we've engaged in "sophistry [that] has always been the anything goes in biotech crowd’s primary tool"and concluding ominously "Make no mistake: This means human cloning is coming closer, as selling embryos for use in IVF is just the front for selling cloned embryos for use in research." The author seems to agree with us for the most part that the distinction between existing practices and this new one is thin[fn1] , but would have us reverse those other practices. That is fair enough. We employ an argument from symmetry here and it can be resolved either way, and we don't actually take a position as to whether these technologies should all be permitted or all prohibited just that they are hard to distinguish (that said, anyone who knows my own work can suspect where I would come out, I can't speak for my coauthor on this!)
Both commentaries are interesting and worth reading. What is more interesting to me is the way in which debates on reproductive technology usage, much more so than abortion, really does cleave the right into two. The libertarian wing wants a strong justification for limiting reproductive choices like other choices about what to do with our bodies and likens the debate to that on organ sale. The more socially conservative wing sees this the beginning of slouching towards gommorah. On abortion this fissure is easier to solve, since the claim of fetal personhood allows more libertarian oriented thinkers to adopt Harm Principle type justifications of preventing harm to fetuses as persons . As I noted in blogging about personhood on my last visit, embryonic personhood claims may be harder to sustain, and thus the consensus more easily shattered. I am part of a project looking at the intersection of abortion and reproductive technology advocacy and scholarship, so this room for schism is something I may write more about soon.
[fn1]: The author does suggests that sperm and egg sale are different because there is no "nascent human being." I think he means "person" not "human being" and I've blogged about why that distinction might matters in my last visit and also why one might support certain theories of when personhood begins over others. In any event the theory of personhood the author implictly champions would seem not to distinguish the existing possibility of preembryo destruction, indefinite freezing, stem cell derivation, etc.
Wednesday, May 22, 2013
9th Circuit Strikes Down Arizona 20 Week Fetal Pain Abortion Ban: Some Reflections on the Opinion
Yesterday, the 9th Circuit (a panel of Berzon, Schroeder, Kleinfeld) struck down as unconstitutional Arizona's ban on abortion at 20 weeks. As the court described the statute:
The challenged portion of Section 7, codified at Arizona Revised Statutes § 36-2159, reads:
A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.
B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.
The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B. 2036, sec. 9(B)(1). The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).
After Nebraska passed the first of these kinds of bills in 2010, Dr. Sadath Sayeed and I wrote about them in Fetal Pain, Abortion, Viability, and the Constitution, for the peer-reviewed Journal of Law, Medicine and Ethics in 2011 on the constitutionality and normative justifiability of these statutes. This is the first case of one of these statutes to reach a Circuit court decision on the merits, so I thought I would offer some thoughts. This will be from the perspective of a scholar not an advocate, though given that I have argued that these statutes should be held unconstitutional I don' t pretend to be disinterested.
Judge Berzon's opinion for the panel takes about as strong a stance against these statutes as possible. She presents this as an easy somewhat "paint-by-numbers" case of unconstitutionality based on prior precedent. Her logic is Roe and Casey make viability an absolutely cut-off for restricting abortions. Viability has to be decided according to the Court by physicians in individual cases. This is a restriction and not a regulation of abortion. The restriction covers pre-viability fetuses. Therefore it is unconstitutional.
That is strongly put, but only by completely ignoring the fetal pain aspects of the case. Indeed to read her opinion one would scarcely know that fetal pain is at issue. As we argued in our article, and I put it even more succinctly in an op-ed in the Washington Post last year:
The fetal-pain bills do not directly challenge the Supreme Court’s judgment. Instead, they assert a new theory for outlawing abortion. The Nebraska bill states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” The legislatures passing these laws say that preventing this pain is a compelling state interest that justifies prohibiting abortion.
Hence, the loophole: Although the Supreme Court has identified preserving fetal life after viability as a compelling interest, the justices have never said it is the only one.
These statutes might be thought of as asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, states may argue that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.
Thus, I think Judge Berzon writes a strong opinion only by blinding the reader to what is new and difficult here.
By contrast, I think Judge Kleinfeld's concurrence does a better job of wrestling with the hard issues. His opinion echoes four points we make in our article:
1. On pp. 39-40, Viability is a bad line from a normative and constitutional perspective but it is one we are stuck with.
2. Even though we think the science is against finding fetal pain in the meaningful sense (the experience of pain), as we worried courts might, he seem inclined to give significant deference to the legislature on this point (page 43).
3. If the conflicting science really did bear out the fact of fetal pain, the state could require fetal anesthesia as its regulation rather than banning these abortions altogether (as he puts it on pp.36-37 "were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out"). We said as much, so clearly *I* think that is right, although his opinion does not tangle with a hard point we raised in the article of whether the statute should be seen as aiming to prevent pain to a fetus versus treating the capacity to feel pain as a marker of personhood.
4. Even if fetal pain is real and unavoidable, that does not mean the Constitution permits the state to weigh the prevention of that state above a woman's right of bodily integrity. Kleinfeld puts the point at once a little less forcefully and much more graphically than we did on page 43: "But protection of the fetus from pain, even the pain of having a doctor stick scissors in the back of its head and then having the doctor “open up the scissors [and stick in] a high-powered suction tube into the opening, and suck the baby’s brains out” was not enough in Gonzales to justify a complete prohibition."
What happens next? Rehearing en banc is possible but my guess is it won't happen. I also do not think the S. Ct will take cert at this stage, and will instead wait for a Circuit split or at least another one of these cases to make it to the Circuit stage before doing so. That said it does worry me in terms of the likelihood of a cert grant that Judge Berzon's opinion makes so much of the idea that viability is an ABSOLUTE dividing line established by the Supreme Court's prior precedent, a view I could easily see several Justices wanting to "correct".
- I. Glenn Cohen
Monday, May 20, 2013
Sex, People with Disabilities, Prostitution, and Universal Health Care: Reflections on "The Sessions"
One of my favorite initiatives at Harvard Law School, where I teach, is that faculty members get to offer an optional 10-12 student not-for-credit "First-Year Reading Groups" on a topic of interest to them that is related to law in some way but not too law-class like. I've taught a reading group on bioethics and law through film that pairs films with papers/topics in bioethics (e.g., A.I. with readings on personhood, Minority Report and neuroscience and law and predicting criminality, Dirty Pretty Things and organ sale and exploitation, The Constant Gardener with clinical trials in the developing world, Eternal Sunshine for the Spotless Mind and therapeutic forgetting and "cosmetic neurology" and many others...)
Next year I will add The Sessions, a film I found very enjoyable starring John Hawkes, Helen Hunt, and William H. Macy from last year that I also found very bioethically interesting. The film is based on a true story and follows Mark O'Brien, a poet who lives in an Iron Lung due to complications from Polio. After unsuccessfully proposing to his caretaker, and believing the end of his life may be nearing, he decides he wants to lose his virginity. He hires Cheryl Cohen-Greene, a professional sex surrogate, who will offer him a maximum of six sessions but makes clear to him this is therapy not romance. I will stop there to avoid ruining the film, but on to the bioethics...
There are fairly clear issues raised about commodification, exploitation, the difference between sex therapy and prostitution, that I have written about in various forms in various places. These are certainly interesting issues but familiar enough. What the film newly prompted me to think about, though, is actually universal health care. In particular, as I have written about indirectly in a couple of papers, what would some of the most prominent theories explaining why we need universal health care say about whether the state should pay for sex therapy (or perhaps even prostitution) for people with disabilities like Mark who find themselves otherwise unable to have sex?
For example, in his wonderful book Just Health, my colleague Norman Daniels, coming from a more Rawlsian tradition (i.e., a liberal tradition focused on promoting liberty and distributive justice through giving priority to the worst-off), grounds the state’s role in promoting health in the obligation, as a matter of political justice, to ensure access to the “normal opportunity range” to pursue the “array of life plans reasonable persons are likely to develop for themselves.” Although Daniels' focus is on health care, it seems to me that sexual satisfaction is also part of that normal opportunity range and part of a life plan most of us would like to pursue.
Similarly, Martha Nussbaum in her great book Frontiers of Justice, writing from a more aretaic (i.e., Aristotelian, focusing on character and virtue) perspective, has argued that the state’s role is to enable human flourishing by raising people above the threshold level on a number of “capabilities.” Among these she mentions “bodily integrity,” as including “having opportunities for sexual satisfaction and for choice in matters of reproduction." I have previously discussed how this kind of approach may justify funding reproductive technologies, but it seems to me as though it also fairly directly establishes an argument for funding Mark's attempts to lose his virginity.
Now this is meant to be provocative, of course. And for some this is no doubt a reductio ad absurdum against universal health care. Fair enough. But for those who believe there is a moral case for funding universal health care, does the argument also lead to funding these kinds of sex therapies? Health is important, of course, but let's be frank (and my parents can stop reading at this point) so is sexual satisfaction, and both seem to me essential parts of the normal opportunity range and/or human flourishing.
Now one distinction might be the anti-commodificationist objections I gestured at above in the sex therapy or prostitution case, that distinguish health care. But for those not moved to forbid the kinds of services Cheryl provides Mark on these grounds, should the state pay? Perhaps there is, to use Radin's term, there is an opportunity for an incomplete commodification posture by allowing it to be bought and sold but not having the government pay.
Others might say the kind of good Mark seeks, sexual satisfaction from a paid therapist, is a kind of ersatz version of what is good. I am not sure I agree with this, and think that there are many for whom sex with a relative stranger may be as valued as sex with a life partner, and this notion seems somewhat quaint in an era of hooking up and open relationships. In any event, even if you think this is a kind of second-class good, many health interventions also offer less than ideal artificial substitutes (prosthetic limbs instead of real ones) but that does not stop us from funding it.
Still others might agree that this is a valuable thing to fund for for someone like Mark, but suggest it should get relatively low priority in the pantheon of health care and education interventions. To those I would push back and say man people spend a disproportionate part of their life in search of a sexual partner, and attempts to cope with sexual dysfunction (e.g., Viagra) is something on which many Americans put their money where their mouth is (hmm... maybe not the best choice of aphorism in this context...)
Finally, some might object that some people with disabilities would not want these services. Fair enough, but as with Nussbaum's capabilities approach we are talking about enabling those who want it not forcing it on those who don't.
As I said, this is meant to be provocative. But I will be curious to know what others think, does the state have an obligation to fund these services the way it does health care? If so, should that obligation extend beyond those with disabilities like Mark to those who face other deficits making sexual relationships hard to achieve?
- I. Glenn Cohen
Thursday, May 09, 2013
Spousal Hiring, Ethics, and the Theory of the Family
Some of my work intersects with family law, although I've yet to fully step into the curricular powder room. After hearing a wonderful presentation about her upcoming book on women in academia by one of my Radcliffe Institute Co-Fellows, I have been thinking more about the ethics of spousal hiring in academi [full disclosure: I am unmarried myself]. As part of her interview with several university presidents and academics, apparently spousal hiring is often credited with helping to improve the number of women on faculties and there is also some data suggesting that in universities with spousal hiring the "index spouse" if you will (the one the university has gone after) performs better than where there is no such policy. I am very interested in how the laudable goals of accomodation and family support intersect with general priors against nepotism.
For today's post, though, I wanted to examine the notion that spousal hiring rules or tendencies may reflect a certain theory of the family. To see this, imagine the following hypotheticals.
1. Brenda and Allen are married. Brenda is hired to teach physics, and the university finds a position for her husband Alan in its law school clinic.
2. Carl and Dan are same-sex partners in a state without legalized gay marriage. Dan is hired to teach physics, and the university finds a position for Carl in its law school clinic.
3. Evelyn is the daughter of Frank. Evelyn is hired to teach physics, and the university finds a position for her father Frank in its law school clinic.
4 Garret is the father of Jordi and a senior scholar in the field. Garret is hired to teach physics, and the university finds a position for Jordi in its law school clinic.
5. Hector and Ingrid are best friends and have been for life. Ingrid is hired to teach physics, and the university finds a position for Hector in its law school clinic.
So each of these is a potential family relation. My sense is that many schools would do or have done hiring in case 1, some would do it in case 2, but none would do it in case 3 through 5. 3 and 4 at least are what average people would call family relationships, so this is interesting.
By making a cut (whether between 1 and the rest or 1 and 2 and the rest) universities are essentially endorsing once conception of the family over others. I want to suggest this is contested terrain, and we may need a justification for why they do so.
One answer would be that everyone asks for 1, and no one asks for 4 or 5. That kind of conventional answer, though, might suggest no one asks for the others because universities have never offered them. A more essentialist answer is that 1 is endorsed because there is a particular value that familial hiring is meant to secure relating to child rearing. That would raise the question of why universities should support that particular goal -- after all closeness and ability to care for an aging parent is also important -- whether some of these other family structures might also facilitate that goal (case number 3 in particular -- and what to do about relationship hiring that has no child rearing involved (including possibly case number 2). Finally, one might suggest that universities are committed to romantic love, or at least believe potential people they might hire care more about romantic love, than parental love or friendship. Again, though, it seems to me highly contestable as to what relationships people value more, very culturally contingent, and also I wonder what it is about the Telos (if I can be Aristotelian for a moment) about the university that connects it to romantic love?
What do people thing about these cases?
Thursday, May 10, 2012
Productivity: A Mother's Day Blog Post
In honor of Mother's Day, I thought I'd write about work-life balance, which is a bit like the Marquis de Sade writing about abstinence. This year my scales have had the elephant of work on one side and the feathers of my life on the other, and still I constantly feel as if I should do more better faster.
My husband has been on my case about this problem, and for good reason. But he finally said something last week that hit home, so to speak. I was complaining that I hadn't been "productive" during the week, and he replied, "That's because you've defined productivity to exclude anything to do with home." His words weren't angry nor were they an attempt to be consoling. He was just stating a fact, which is what made his words so resonant for me. It would be an overstatement to say that I define productivity by my word count, but not by much.
As a wife and mother of three sons, my family is my top priority. But I'm not sure I consistently send them that message, and it can be hard to know what making family your top priority means on a moment-t0-moment or day-to-day basis. I definitely put a high value on time spent in direct interaction with them: I try never to work late nights or weekends, and I've gotten rid of cable television and wi-fi at home to prevent distractions from swamping family life. That said, I don't much value the time I spend making home "a home." I almost completely discount the value of performing the mundane chores that make up this thing called a life. I tend to begrudge every second spent folding the Sisyphean piles of laundry on my dining room table, taking the emotionally withholding cat to the vet, or doing the dishes, treating these chores as obstacles to productivity. I don't even enjoy cooking much anymore because it takes "too much time." I do all these things, but they give me little sense of accomplishment, and I tend to view them as getting in the way of what I "should" be doing.
As I write this, it sounds pretty misguided. The worst part is that I suspect I'm not the only academic who has defined productivity so narrowly that she has trouble setting a satisfying work-life balance as a result. The problem, ultimately, is one of accounting. On the life side of the balance, motherhood has fleeting and fortuitous moments of joy, but one finds few signposts, while guiding children to adulthood, that one is headed in the right direction. Even when one knows certain tasks are necessary, there are few direct measures that tell one whether one is doing them well or poorly. [Is yelling ever warranted to make sure the kids' homework gets done? I sure hope so.] For many of the tasks, indeed, such concepts seem entirely beside the point.
Work, on the other hand, has a strict system of productivity accounting. (Academia's productivity accounting is much too strict, but that's a topic for a different productivity blog post.) One can measure one's productivity by words written, articles published, lectures delivered, students taught, and there are often encouraging signs along the way that one is doing one's tasks well. It is easy, therefore, to let work, with its tangible rewards, overbalance life, with its intangible ones.
My hope for Mother's Day is that I can recalibrate.
Monday, December 05, 2011
Circumvention Tourism: Traveling for Abortion, Assisted Suicide, Reproductive Technology, Female Genital Cutting, Stem Cell Treatments, and More...
This past week I was in lovely Hermance, Switzerland, as a guest of the Brocher Foundation and the International Society for Stem Cell Research's Ethics and Policy Commitee to talk to them about stem cell tourism -- travel abroad to receive treatment or be part of a clinical trial using stem cells not authorized in the patient's home country. This is often a sub-type of what I call "circumvention medical tourism" -- medical tourism for services that are illegal in the patient's home country but legal in the destination country to which they travel.
I have just posted on SSRN a draft of my new article, Circumvention Tourism, 97 Cornell L. Rev. _ (forthcoming, 2012), which uses the real world examples of medical tourism for abortion, assisted suicide, reproductive technology (especially surrogacy), and female genital cutting to build a bigger legal and ethical theory of circumvention tourism.
I briefly discuss the 'can' question: Assuming a domestic prohibition on access to one of these services is lawful, as a matter of international law is the home country permitted, forbidden, or mandated to extend its existing criminal prohibition extraterritorially to home country citizens who travel abroad to circumvent the home country prohibition?
Most of the Article, though, is devoted to the 'ought' question: Assuming the domestic prohibition is viewed by the home country as normatively well-grounded and lawful, under what circumstances should the home country extend its existing criminal prohibition extraterritorially to its citizens who travel abroad to circumvent the prohibition? I show that contrary to much of the current practice, in most instances home countries should seek to extend extraterritorially to circumvention tourists their criminal prohibitions on abortion, FGC, assisted suicide, and to a lesser extent reproductive technology usage.
I then use this analysis as scaffolding to build towards a larger theory of circumvention tourism that includes examples outside of the medical context (such as prostitution, drug use, honor killings, and others)
I don't normally post drafts on SSRN until they are in page proofs (this draft is before the editors have had a chance to improve it) but am doing so early in this case because the topic is developing and I want my views to be part of the conversation. Still, it is a work-in-progress, so if you have any feedback you want to give me I always value it; though I think it makes more sense just to email me comments on the paper directly rather than post it on here so as not to clog the blog...but happy for more editorial/conversational comments to be added on here.
PS: I've already benefitted greatly from workshops of this paper at HLS, UT Austin, and by the NYU/Brooklyn Crim Law Theory Group that Dan Markel coordinates. I love workshopping papers, so if you are interested in having me present this or another paper feel free to get into contact.
Sunday, November 20, 2011
Should the U.S. Prohibit Anonymous Sperm Donation?
In the United States, a movement urging legally prohibiting sperm-donor anonymity is rapidly gaining steam. In her forthcoming article in the Georgetown Law Journal, The New Kinship (not yet up on SSRN), and in her wonderful book, Test Tube Families, Naomi Cahn is among this movement’s most passionate and thoughtful supporters. She argues for mandatory sperm-donor registries of the type in place in Sweden, Austria, Germany, Switzerland, the Australian states of Victoria and Western Australia, the Netherlands, Norway, and, most recently, the United Kingdom and New Zealand. The UK system is typical in requiring new sperm (and egg) donors to put identifying information into a registry and providing that a donor-conceived child “is entitled to request and receive their donor’s name and last known address, once they reach the age of 18.”
In my new Article, Rethinking Sperm Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, forthcoming in the same issue of the Georgetown Law Review (out in print in Jan or Feb 2012 and up on SSRN now), I explain why the arguments for these registries fail, using Cahn’s Article as my jumping off point.
I demonstrate four problems with the arguments Cahn offers for eliminating anonymous sperm donation:(1) Her argument for harm to sperm donor and recipient parents fails in light of the availability of open-identity programs for those who want them, such that she imposes a one-size-fits-all solution where it would be better to let sperm donor and recipients parents choose for themselves.
(2) Her argument for harm to children that result from anonymous sperm donation fails for reasons relating to the Non-Identity Problem. This portion of the Article summarizes work I have done elsewhere, most in-depth in Regulating Reproduction: The Problem With Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2011) and Beyond Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2012 and up on SSRN soon).
(3) She has sub silentio privileged analogies to adoption over analogies to coital reproduction. When the latter analogy is considered, her argument is weakened. I show this through a Swiftian Modest Proposal of a Misattributed-Paternity and One-Night-Stand Registry paralleling the one she defends for sperm donation.
(4) The argument may not go far enough even on its own terms in endorsing only a “passive” registry in which children have to reach out to determine if they were donor conceived, rather than an “active” registry that would reach out to them. If we recoil from such active registries, that is a reason to re-examine the reasons in favor of the less effective passive ones.
For the reasons discussed, despite my admiration for this paper and all of Cahn’s work, I am not persuaded by the argument for adopting a mandatory sperm-donor identification registry of the kind in place elsewhere in the world. Indeed, I think these registries should be eliminated, not replicated. At a moment in which the idea of these registries is rapidly gaining popularity and attention in the United States, I hope my dissenting voice will be heeded.
Tuesday, November 15, 2011
The Curricular Powder Room?
A female friend who teaches family law recently wryly suggested to me that family law had become "the curricular powder room," in that circa 2011 it is a subject whose teaching and scholarship is dominated by women in the American legal academy. This was not always so. In her work on the development of family law textbooks out of domestic relations courses, my wonderful colleague Janet Halley's What Is Family Law? A Genealogy, Part I and II (the latter is forthcoming) shows that in its early days family law textbook writing was dominated by men, just like all other fields of law, and the female dominance is of fairly recent vintage.
I only dabble in family law with my reproductive technology work, but my experience with the various conferences I attend has led me to believe that the number of heterosexual men who primarily write and teach in the area and have joined the academy in the last 10 years or so is extremely small, and even when I teach family law topics I can feel myself performing my sexuality to some extent as if it were a ritual to get access or credibility. The only other field that I know of which comes close in terms of gender splits, is health law, although here the split feels more like 50/50, which is striking more because of the gender disparity of almost all the other fields in law.
Of course, one reaction to all this is that it is the other legal fields that are the problem in terms of gender skew so far in favor of men, and I am sympathetic to that point, but in this post I am primarily curious about what the ramifications are of family law having become "the curricular powder room"?
Would family law scholarship and teaching be different if more men were involved? Does the female domination of it lead to a kind of reactive devaluation of its importance or seriousness by the rest of the legal academy? Are there methodological correlates to the gender skew – for example, again from my relative outsiders' perspective, there seems to have been less law and econ in family law than elsewhere, and I wonder if that is partially a function of gender (but worry that this hypothesis itself might be based on gender stereotypes)? What impact does all this have on our students' enrollment in these classes, experienc of them, and career choices in the area? Are any of these descriptive claims (if they obtain) actually problems, or at least things the field should be concerned with?
Monday, November 14, 2011
Incest, Surrogacy, Abstinence Education Funding, Single Parent Reproduction...or What's Wrong with the Regulation of Reproduction
Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to reproductive technologies? Should the state fund abstinence education?
One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention - the protection of the best interests of existing children - visible in areas such as adoption, child custody, and child removal.
In Regulating Reproduction: The Problem with Best Interests, coming out shortly in the Minnesota Law Review (the penultimate draft now available on SSRN), I show why BIRC (or if you prefer, child welfare) arguments are a non-starter in justifying most regulation of reproduction, despite their dominance of the discourse. This is the first part of a larger project, and its companion paper Beyond Best Interests will appear in the Minnesota Law Review’s April 2012 issue, and should go on SSRN shortly.
What is the problem with best interests?
Drawing on insights from bioethics and the philosophy of identity (especially Derek Parfit’s work), I show why the BIRC justification, at least stated as such, is problematic both as a normative and constitutional matter: unless the state’s failure to intervene would foist upon the child a “life not worth living,” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless, I show that BIRC arguments are frequently relied upon by courts, legislatures, and scholars to justify these interventions. At a doctrinal level the Article also shows that this reliance on BIRC justifications is in tension with the implicit rejection of similar reasoning by courts unwilling to recognize wrongful life torts.
After demonstrating why the BIRC argument is unworkable as stated, I considers three possible reformulations of the argument that would save it, including one that focuses on population welfare (and non-person-affecting principles). I explain why none of these approaches is persuasive including by discussing their disturbing implications as to enhancement and eugenics.
In the companion paper, Beyond Best Interests, I consider a set of quite different substitute justifications for regulating reproduction – reproductive externalities, wronging while overall benefitting, legal moralism, and virtue ethics approaches – and evaluate their plausibility.
While Regulating Reproduction: The Problem With Best Interests is almost in print (the final version will hopefully make the diagrams a bit more readable), I still have time to work on the companion paper so I welcome any comments on- or offline. I will also blog a bit later this month about a related paper, Rethinking Sperm-Donor Anonymity: Of Changed Selves, Nonidentity, and One-Night Stands, forthcoming in the Georgetown Law Journal, which I will post on SSRN shortly.
This project has been a long time in gestation, so I redouble my thanks to all those of you who have given me comments and invited me to present at your workshops and conferences (hopefully you are all thanked in the paper), since you have helped me improve this work immeasurably.
Sunday, November 06, 2011
Sex and the Single Bathroom
I have a confession to make. I’ve recently used the women’s washroom.
Let me explain. On the 5th floor of Griswold Hall where I have my office, there are two single occupancy bathrooms with locks – one male and one female, not to be confused with the Ally McBeal style unisex bathroom. Rather, this is a single occupancy bathroom that unlike George Constanza's is not limited to people with disabilities.
It turns out, though, that only the women’s single-occupancy bathroom has Palmolive with which I can wash my glasses before class (one of the assistants who is a woman mentioned this to me one day when I needed to clean them). It is unclear to me why only the women's bathroom has Palmolive, but I have worried about disrupting something important if I moved it to the men’s. So I’ve started going into the women’s bathroom before class, locking the door, washing my glasses, and then leaving. I have received some funny stares from people who have caught me doing it…but it has caused me to re-examine my single-occupancy bathroom behavior and expand my gender subversive bathroom routine more generally:
If at a restaurant with single use bathrooms there is a line-up for the men’s but none for the women’s, I will walk over to the women’s. This too engenders funny looks, and I’ve noticed I am shyer about doing it when the men in line are more macho … no doubt a form of gender panic on my part.
So I am curious whether I am doing something wrong, and whether all single occupancy bathrooms should be neutered? The strongest argument I can fathom for gendering them is that women and men take different amounts of time in the bathroom, such that separate allocations are desirable. But, if anything, it seems to me that women get the short end of the stick on this one, and both more distributively fair and more efficient then to have both bathrooms be open to both sexes. But perhaps I am missing something?
Wednesday, November 02, 2011
Stem Cells, IVF, and Abortion: Is There a Right and Left Position?
This is my third post inspired by the Mississippi Personhood Amendment, and this one turns to the normative issues.
Many people who identify as pro-life as to abortion, oppose stem cell derivation involving the destruction of pre-embryos (or “embryos” simpliciter if you prefer, language is power), and often discard of embryos as part of IVF. Many people who are pro-choice by contrast oppose prohibitions on abortion, stem cell derivation, or IVF embryo discard. What I try to show my students in the classes I teach, and I want to argue here, the three issues do not necessarily go together and the terrain is more complicated than the way it is usually presented.
First, for the left. As Judith Jarvis Thompson most famously tried to show in her (still quite controversial) work, support for an abortion right is not necessarily inconsistent with recognition of fetal personhood. That is, even if one believes fetuses are full persons, one can still support a right not to be a gestational parent (to use my terminology) for women that stems from bodily integrity or perhaps autonomy. As I have argued, as a normative and as a constitutional matter recognition of a right not to be a gestational parent does not necessarily imply recognition of a right not to be a genetic parent, which suggests that the abortion right and the right to engage in IVF discard are quite severable because prohibiting the destruction of excess IVF embryos does not require forcing unwanted gestational duties on anyone. The disconnect is even stronger when it comes to stem cell derivation, where none of the “rights not to procreate” is involved. That means that one can very happily be pro-choice as to abortion, and prohibit embryo discard or destruction via stem cell derivation.
Second, as to the right....Let us assume the pro-life position on abortion depends on the view that fetuses are persons or close enough to persons that their protection trumps the interests in avoiding gestational parenthood of pregnant mothers. That position does not imply that the destruction of embryos at all stages of development is also equally problematic. A lot depends on one’s theory of why fetuses should be given personhood or rights claims against destruction (on this issue I highly recommend Cynthia Cohen’s chapter on personhood in her book on stem cells). If your theory of personhood is about the actual possession of criteria X, on some ways to fill in “X” – such as fetal pain, which I have written about here – fetuses late in gestation may possess the criteria but not embryos as the stage they are discarded/destroyed as part of IVF or stem cell derivation. Similarly, many have defended a 14-day or later view of personhood, where personhood begins on the 14th day after fertilization where embryonic twinning – the potential for an embryo to become monozygotic twins – ends. This argument is usually premised on problems with numerical identity. If the embryo was a person before day 14, but twins into two people, which one was it – person A or person B? Many find this argument persuasive, although certainly there are objectors (for example, those who say that if a stick is broken into two that does not mean it wasn't originally one stick, though others doubt the analogy). For present purposes all I want to suggest is someone who opposes abortion can thus fairly easily consistently oppose prohibition on destruction of early embryos.
None of that means that zealots on either side are capable of being nuanced here. The cultural cognition project, if anything, suggests the opposite. Still I hope that judges and academics are better poised to see the nuances here.
Tuesday, September 13, 2011
What's in an Acronym?
Last weekend, I had the honor of attending Lavender Law, the annual conference of the National LGBT Bar Association. I gave a few talks and chaired a wonderful panel on cyberbullying and the First Amendment, but, as with many conferences, it was the individual and informal conversations with colleagues that were particularly rewarding.
On Friday, I met Mason Davis, Executive Director of the Transgender Law Center in San Francisco, California, and asked him how he responds to members of the gay and lesbian community who feel that they face different issues than members of the transgendered community and that gay and lesbian interest groups should not be diverted to transgender issues when gay causes are so in need. They wonder why the L and the G should always be linked with the T.
The question might seem strange or even hateful, but it exists as a undercurrent in many minority groups. All groups fighting for their civil rights do so with allies, or, at a minimum, with different generations or different subgroups. But, not every group wants or needs the same things. Not everyone's direct personal interests are always aligned and, in fact, those interests could be so misaligned that affiliation could, some think, be a bad idea. It is not often openly discussed, but many gay men have approached me wondering why our leaders' time is spent on issues like health insurance for gender reassignment surgery, for example, or our lobbyists would oppose clearly pro-gay legislation if it did not include pro-transgender elements.
I do not write on or research transgender issues. Nor do I know any transgendered persons, and I regret that. I am concerned that my views on these issues may be colored by the uniformity of my social and professional circles. Therefore, I have always stayed on the sidelines of these debates, unsure of where I stand until I could understand transgendered persons' needs better. But it always struck me as very selfish to think that just because a gay person's personal interests are not the same as a transgendered person's, that means that should not be allies in the search for civil rights. After all, gay men and lesbians are not always concerned with the same issues. In the 1980s and early 1990s, HIV/AIDS was almost exclusively a gay male concern, not a lesbian one.
I asked Mr. Davis if he hears these objections and how he responds.
He said he hears it all the time, but in his experience, it's not selfishness. Some gay strategists find gay people more relateable to the average American voter, so inclusion of transgender issues makes a successful gay rights strategy more difficult. Other gay donors are concerned about this or that issue and would prefer that their money be used for their area of concern. But, while our goals are not always the same, Mr. Mason says that we are all part of the same project: we are all trying to be who we really are unencumbered by discrimination, but some of us need a little more help to be who we really are.
Gays and lesbians can be who they really are by coming out of the closet, by being out at home and in the workplace and by marrying their partners and starting families. They are concerned with tearing down barriers that stand in their way: Don't Ask, Don't Tell, employment discrimination, same-sex marriage bans, second-parent adoption bans, and so on. But, transgendered individuals need a little bit more to become who they really are. They have unique medical hurdles to cross in order to get there, but Mr. Mason believes that L's, G's and T's are all searching for the same thing. We all want a country where nothing stands in the way of our true self.
I have yet to field test this argument on some of my gay friends. What do you think?
Wednesday, July 27, 2011
Amicus Support Requested: Hosanna-Tabor
Leslie C.Griffin and Caroline Mala Corbin have drafted an amicus brief in the Hosanna-Tabor case, which involves a ministerial exception to employment laws and has important implications for gender discrimination. They are asking interested law professors, particularly First Amendment Law professors and Employment Law professors, to join them in supporting the brief. Here's their description of the case and the issues, which I am happy to pass along:
Cheryl Perich was a kindergarten and fourth grade teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. After she became suddenly ill at a school event, Hosanna-Tabor granted her a disability leave of absence and assured her that she would still have a job when she returned. After her narcolepsy was treated and her doctor cleared her to return to work, however, school officials questioned whether she was better and urged Perich to resign voluntarily from her position. After Perich told the principal that she would sue for disability discrimination, she was fired. Correspondence from the school indicates that she lost her job because of her insubordination and her threats to take legal action.
Perich sued for discriminatory retaliation under the Americans with Disabilities Act. The success of Perich’s retaliation claim turns on whether the Supreme Court finds that she is a minister. If she is not a minister, she will probably win. After all, the school stated in writing that a main reason for Perich’s termination was her threatened lawsuit. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.
The ministerial exception grants religious organizations immunity from employment discrimination suits brought by "ministerial" employees, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability (and in fact their Governing Manual for Lutheran Schools states that the school will not discriminate on these grounds), ministers cannot sue the school for disability discrimination. The lower courts, who created and uniformly apply the ministerial exception, claim that the religion clauses require it
The ministerial exception has breathtaking consequences for the civil rights of thousands of women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (school, mosque, synagogue, church, hospital, nursing home, social service organization, faith-based organization, non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers Compensation laws and state tort and contract law) as long as the employer decides that the employee performs “important functions” in the religion.
We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court. Our brief explains why the Free Exercise and Establishment Clauses do not require the ministerial exception. The Free Exercise Clause does not create a zone of church autonomy to which the laws do not apply. Indeed, Employment Division v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the American with Disabilities Act is a neutral law of general applicability. The Court’s church property cases do not hold otherwise.
As for the Establishment Clause, applying the ministerial exception in this case actually causes more Establishment Clause problems than simply resolving the retaliation claim. Deciding whether Perich’s termination was caused by protected activity, when the school wrote her a letter stating that it intended to fire her because she threatened legal action, does not entangle the court in any theological disputes. In contrast, deciding whether Perich’s service as a Christian role model for her students is important to the religious mission of the school requires the court to delve into the religious beliefs of the Hosanna-Tabor Evangelical Lutheran Church. Resolving a theological dispute about the religious role of schoolteachers is precisely the kind of doctrinal issue the courts are incompetent to make, yet the ministerial exception requires such theological analysis in this case.
If you are interested in learning more about the case, reading a copy of the brief and signing on to it, please contact us at the following e-mail addresses:
Leslie C. Griffin & Caroline Mala Corbin
Friday, July 01, 2011
What's Wrong With This Picture?
Like many other New Yorkers, I was proud and heartened by the fact that our state has joined the growing number of jurisdictions that now allow same sex couples to marry. I am thrilled for my friends who can now legally marry in New York, and I look forward to the day in which all Americans enjoy these rights in all fifty states.
I must admit, however, that when I woke up on Saturday morning and saw this picture, my heart sank a bit. The scene pictured should memorialize a major step forward for equality and gender issues in New York State. But where, I wondered, were the women? Where were the New Yorkers of color?
To be clear, the signing photo features several men key to the bill's success, and they are to be commended for their efforts and courage. Assemb. Daniel O'Donnell, who led the legislative effort, and Assemb. Matthew Titone are both openly gay representatives in the New York State Assembly. They are listed as having introduced the bill -- but so is Assemb. Deborah Glick, another openly gay representative. Several other assembly reps have "introducer" credit and yet more are listed "multi-sponsors" of the bill in the Assembly. There are several women and minorities on the list.
Also pictured is Sen. Thomas Duane is the only openly gay state senator in New York, and Sen. James Alesi who was the first Republican state senator to pledge his support for the bill. What about a more diverse group of senators who supported the bill? Not all members who are women or minorities supported the bill, but the list is long enough to suggest that the photo could have been more inclusive.
It is perhaps, patronizing and backwards to insist on diversity in a picture for its own sake. If the only people in the picture were those who were most responsible for its success, then it might be demeaning to ask a woman or a minority member of the legislature to join in the signing ceremony for the sake of a diverse image. I should just appreciate the end result of the bill without dwelling on such trivialities. The legislation was signed close to midnight after some tense days of bargaining, and my guess is that no one thought too hard about the image projected to the world.
Deep down, however, I can't help but bristle at that photo. Did the governor's office overlook the participation of women? Did minorities and women themselves demonstrate a leadership failure? Answering either question in the affirmative is troubling. Perhaps the strongest women and minority leaders on this issue came only from outside of the legislature. For example, Christine Quinn was a major supporter of the legislation, but she is Speaker of the New York City Council, and therefore would not necessarily be a part of the signing since she is not a part of state government.
No matter what the explanation, the photo smacks of a bygone era -- one in which the white men of a polity are kind enough to bestow civil rights upon the rest of us. Perhaps this picture is a reminder that as we celebrate this step forward, there are still many ways in which we can work to become a more diverse and inclusive society.
Monday, March 28, 2011
DOMA: Enforcing an Unconstitutional Law
Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. I am not alone in this view, with President Obama, Judge Joseph Tauro (D. Mass.) and many others on the left and right in my camp. But, even after announcing that the Department of Justice will no longer defend DOMA Section 3 because such laws fail heightened scrutiny, President Obama has rightly promised to continue enforcing DOMA Section 3 until it is either finally overturned by the Supreme Court or repealed in Congress. Today, I would like to consider what "enforcement" means.
DOMA Section 3 prevents the federal government from recognizing any marriage that is not between one man and one woman. It makes thousands of legally married same-sex couples strangers to more than 1000 federal rights that accompany opposite-sex marriages and injects the federal government into an area of family law traditionally and exclusively given to the States. Among other things, it denies benefits to same-sex spouses, prevents federal employees from putting their legally married same-sex partners on their health insurance and tears apart legally married same-sex binational couples. Recently, President Obama stated that he believes DOMA to be unconstitutional under heightened scrutiny and, therefore, refused to continue defending the statute in various challenges snaking their way through the federal courts. He did say that his Executive responsibilities required that his Administration continue enforcing the law.
What it means to "enforce" DOMA came into view this weekend. In a striking 180-degree turnaround, two U.S. Bureau of Citizenship and Immigration Services (USCIS) districts — Washington, D.C. and Baltimore — stated that departation cases in their districts involving married gay and lesbian couples would be put on hold. I was honored to be called by various media outlets to justify this policy change. How is this not an example of the Obama Administration declining to enforceDOMA, they asked?
More AFTER THE JUMP.
The USCIS is part of the Executive Branch and it is unlikely that only two of the country's CIS districts would make this policy shift on their own, suggesting that they are likely operating under instructions from somewhere up the Executive change. Regardless, the decision to postpone deportations of legally married same-sex binational couples is undoubtedly in response to President Obama's decision on the constitutionality of DOMA.
But, if DOMA is what is standing in the way of a married same-sex foreign national being allowed to remain in this country like his or her married opposite-sex foreign national comrades, is not the indefinite postponing of deportation proceedings tantamount to, at a minimum, an indefinite postponement of the Executive's responsibility to enforce duly enacted laws?
Let us be clear about the policy. The USCIS offices statedthat alien relative petitions and green card applications filed by married same-sex couples will not be denied out of hand simple because of DOMA. Instead, the applications would be held in abeyance to allow for continued challenges to DOMA. As a leading gay immigration attorney has explained, "The significance of the 'abeyance' policy is two-fold: first, it means that petitions and applications that normally would have been denied because of DOMA, will now remain in 'pending' status, and second, this status will give protection and benefits to the applicant for an indefinite period."
In other words, the President's decision that DOMA is unconstitutional means that DOMA is no longer an a priori barrier to temporary reprieves from deportation. The CIS has not decided to stop enforcing DOMA; rather, it has decided not to tear apart loving, committed and legally married couples while DOMA's constitutionality is, at best, up in the air. DOMA still denies these couples thousands of federal benefits, but the CIShas come up with unique and creative strategies to at least keep married couples together while questions are answered. DOMA itself would not force deportation in these cases. The denial of an alien relative visa, pursuant to DOMA's discriminatory policy, would. All CIS has done is delay a final decision on alien relative petitions given the current challenges to DOMA. It sounds like an adequate compromise given the odious straight jacket DOMA forces upon us.
Wednesday, March 09, 2011
Two Models of Sociolegal Change
Thanks to Dan and the PrawfsBlawg crew for inviting me back to guest-blog and for allowing me to go overtime to wrap up my posts. You can catch me at either of my two regular blogging spots, the Marquette Law Faculty Blog (surprisingly active for a faculty blog!) and Madisonian.net. Just one more post before I go, this one not on copyright law, but on variable rates and directions of social change in a federal system.
I have a new article, Constitutional Safety Valve: The Privileges or Immunities Clause and Status Regimes in a Federalist System, out in the current issue of the Alabama Law Review. The article represents the end point of a fairly long process that began with a seminar paper in law school. In 1996, I was impressed with the tenor of the debate in Congress over the Defense of Marriage Act; there were several statements to the effect that failing to wall off the status of legally married same-sex couples would lead to the downfall of society. It reminded me strongly of the rhetoric in Dred Scott that recognition of Scott's citizenship would have calamitous effects. As I dug into it, I found even stronger parallels in antebellum debates in Congress over travelling black Northern citizens in Southern states, and the extension of slavery to the territories. Congress seemed, then as now, appeared alarmed at the prospect of a state-recognized social status to destabilize the societies of states that didn't recognize that status, merely by virtue of individuals with that status travelling.
The antebellum debates were ultimately resolved by the Fourteenth Amendment, and in particular the Privileges or Immunities Clause. So I wrote a paper about how the Privileges or Immunities Clause had a forgotten purpose that would mediate an entrenched conflict between states over an inconsistently codified sociolegal status. Of course, that argument will have the most contemporary relevance if such a conflict in fact develops. But it's not at all clear that we are heading that way. There's another model of sociolegal change when it comes to anxiety over travellers bearing destabilizing statuses: divorce.
There is, I think, a fairly interesting article yet to be written on the history of the conflict in the early twentieth century over interstate recognition of divorces. The Supreme Court decided no fewer than 17 divorce cases between 1901 and 1957. The controversy over one of those cases, Williams v. North Carolina, 317 U.S. 287 (1942), prompted Justice Robert Jackson to write a book about such interstate conflicts, Full Faith and Credit: The Lawyer’s Clause (1944). A number of states, with Nevada leading the way, eased their divorce laws in the early twentieth century, and with the increasing ease of travel, married individuals were travelling to such states with the purpose of getting a divorce they could not secure at home. This caused conflicts over whether such status determinations needed to be recognized by other states. The conflict concerned not only the changing view of marriage, but also the role of women in society. The women's movement was a part of the Progressive program of the early twentieth century, culminating in the right to vote.
But the conflict over divorce never became entrenched; instead, it dissipated. It turned out that the friction over divorce was due to a different rate of change in divorce law in the various states, but that change eventually became uniform, and with it the conflict disappeared. It is possible that same-sex marriage and gay rights generally are heading toward this conclusion; the difference between now and just 15 years ago is striking. If so, the second coming of the Privileges or Immunities Clause that I describe in my article will have to wait for another day.
Thursday, September 23, 2010
Justice Scalia at Hastings: Sex, Lies and Originalism
When I last chatted with you all, I remarked upon Justice Scalia's remarks upon the dedication of our wonderful new building here at Marquette. I once again bring news of Nino.
During a question and answer period at a Constitution Day event at Hastings College of Law, Justice Scalia announced the view that the Constitution does not forbid sex discrimination. His argument, I take it, is that the original public understanding of the equal protection guarantee was that is was limited to race and that no one imagined that it was intended to constitutionalize a particular view of gender roles.
The day before I had been asked to guest lecture in a colleagues' course on Law and Social Change. The idea was apparently to bring in a real life conservative to talk about judicial restraint. I spent a fair amount of time on Justice Scalia's textualism with which these latest remarks are in, I think it is fair to say, tension. If the equal protection guarantee was to be limited to race, why not say so? Writing at Balkanization, David Gans certainly seems to thinks so.
The answer, I suppose, is that an equal protection clause that might apply to other things could apply to anything. Courts have traditionally tried to limit its scope through the devices of multi-tiered scrutiny and through the identification of suspect classes that are thought to be situated in ways that justify more intensive examination of distinctions that are claimed to burden them. Few seem to believe that the extension of some form of heightened scrutiny to distinctions drawn on the basis of gender have proven unworkable or resulted in significant frustration of the popular will, so what's the problem?
My guess is that he Scalia's narrow concern is not so much about sex discrimination as it is about sexual orientation discrimination. In particular, I suspect that he is troubled by the use of changed gender roles to argue that the state can attribute no significance to gender. In Perry v. Schwarzenegger, for example, the district court used legal developments such as the abolition of coverture to argue that, because we don't have legally mandated gender roles, gender no longer has much to do with marriage.
My own sense in reading Perry was that the court had assumed the triumph of equality feminism over difference feminism. It is one thing to say that women are free to participate equally in public life. But it is yet another to say that there are not certain differences between men and women that might justify structuring certain institutions in a particular way thought to accommodate - or, perhaps more accurately - reconcile those differences. If men and women experience sexual desire in different ways and, therefore, have, in anthropological terms, differing "mating strategies" or if they experience parenthood in differing ways, then perhaps the state will wish to structure marriage in a way that accomodates or reconciles those differences.
These views cannot, in my view, be dismissed as "neanderthal" (many people experience them as significant factors in their lives) or as calling for a return of the hausfrau relegated to kirche, kuche und kinder. (Phrasing it in that way would also risk the invocation of Godwin's Law.)
Of course, they may not get you to a justification for the prohibition of same sex marriage. One might argue that, if same sex couples, due to inculturation or otherwise, want to buy into an institution shaped by the recognition of gender differences, perhaps they should be permitted to so. We are now at that curious point in the same sex marriage in which the views of conservatives and, for lack of a better word, radicals begin to proceed from the same set of presuppositions. Conservatives worry that same sex marriage will change the cultural and legal norms of marriage. Radicals hope that it will.
Scalia's broader concern is his oft-stated distrust of the views of "cultural elites." In his view, permitting courts to discern contemporary standards is a bit like the old line, about the nineteenth century modernist protestant seeking the authentic Jesus. He tends to find Him at the bottom of a well and is pleased to note the resemblance.
I suppose this is no insight. It is no mystery as to how Scalia would view the district court's decision in Perry. But I don't know that it means, as Gans and some of the commenters at Balkinization seem to think, that Scalia's constitutional method is incoherent or hypocritical. To be sure, it leaves room for manuever. If one wishes to say that the original public understanding of the equal protection clause was that it had to do with race while abandoning the idea of the original expected application (i.e., that it wouldn't require desegregation of schools), one needs to justify the level of generality at which this "original public understanding" is pegged. One also needs to justify, as Gans point out, the view that the racial equality mandated by the clause can be reduced to color blindedness and does not extend to ameliorative measures designed to repair the harms to blacks brought about by slavery.
But to ask those questions, it seems to me, calls for extending the conversation and not for ending it by assuming that there can be no answers.
Tuesday, January 05, 2010
If you’re a hammer, everything looks like a nail. If you’re a law professor, every social problem seems to call for a legal solution. “Cyberbullying” is this decade’s hate speech. Like “hate speech,” "cyberbullying" is a label, not a legal definition. The inherently pejorative label carries the implication that “cyberbullying” is a new and serious problem that the law should address. Of course, the law already does address “cyberbullying.” Online threats, stalking, and hacking are crimes. Online defamation is libel, and intentional infliction of emotional distress is tortious whether it takes place online or off.
But what, you might ask, can be done about cyberbullies whose bad conduct isn’t proscribed by existing law? For example, what should be done about law students who make sexist or racist or demeaning remarks about their classmates online, gaining the courage to speak from the cloak of anonymity? Perhaps they should be denied admission to the bar on the grounds that they lack the character and fitness necessary to be lawyers. This is the topic for debate by an AALS panel sponsored by the Section on Women in Legal Education and the Section on Defamation and Privacy. The title of the panel is "The First Amendment Meets Cyber-Stalking Meets Character and Fitness," and it will be held on Saturday morning at 8:30. Full disclosure: I'm on the panel, cast in the role of defending cyberboorishness against legal sanction. It should be fun.
Wednesday, August 26, 2009
Managing the Busy Days
Maybe because a busy fall approaches, two things struck me when I recently read a profile of Atul Gawande -- full-time surgeon, prolific writer, father of three.
Monday, August 24, 2009
The Meaning of Y
Recently, I’ve been thinking quite a bit about Caster Semenya, the 18-year old world-champion runner from South Africa. In response to concerns that Semenya is too fast and that her voice is too deep and that her build is too masculine, track and field’s governing body has arranged tests to ascertain her sex. One Italian runner, Elisa Cusma, complained: “These kind of people should not run with us. For me, she’s not a woman. She’s a man.” The concern is not that Semenya set out to fool the governing body. The concern is that Semenya, who grew up as female, may in fact have sufficient male characteristics to be categorized as male. As someone who writes about gender and race as social constructs and imperfect proxies, my fascination with the Semenya case goes beyond prurient curiosity. For me, the controversy brings to mind the racial prerequisite cases from the early 1900s that Ian Haney Lopez has written about, such as United States v. Thind and Ozawa v. United States. It also brings to mind Ariela Gross’s work on litigating whiteness. Bust mostly, the controversy speaks volumes about the meaning of sex and gender.
I have no idea what the outcome will be. A gynecologist, an endocrinologist, a psychologist, an internal medicine specialist, and an expert on gender have all been asked to examine Semenya and weigh in on the issue. Indeed, I can easily imagine a situation in which some tests will suggest Semenya is female, while other tests will suggest she is male. Indeed, I can easily imagine a wringing of hands, a determination that Semenya is “different” and thus ineligible to compete “as a woman” or “as a man.” For me, the real issue is not whether Semenya is male or female, but rather our compulsive need to understand sex and gender in binary terms, even when such binary thinking excludes significant segments on the population. It is similar to the way we need to know whether someone is black or white, straight or gay, liberal or conservative, guilty or innocent, when the reality is often far more complicated.
A NY Times article speculates that whatever the outcome, 18-year old Semenya’s life will be forever changed. And all of this makes me ask “what if?” Since the election of President Obama, there has been talk, however premature, of living in a post-racial world. Clearly a post-racial world seems something we should aspire to. But how about a post-gender world? Should that also be on the agenda? What might it be like to live in a world in which the first question we ask when someone is pregnant is not “boy or girl”? What might census data collection or Title VII or Title IX or marriage equality look like in such a world? What might it be like to live in a world without “urinary segregation,” to borrow from Lacan? Would it be possible to live in such a world? Would we want to? And can the law get us there?
Monday, June 29, 2009
The Daily Show -- Stewart and Huckabee on Abortion
This is a joint post with June Carbone
In mid-June, Jon Stewart conducted another of The Daily Show’s multiple part interviews with former Governor Mike Huckabee. While the previous show had focused on gay marriage, Stewart asked Huckabee to choose a topic he’d like to discuss. Huckabee’s choice: “the pro-life issues,” paraphrased by Stewart as “abortion.” The two reprised the continuing debate over abortion – and as has become increasingly the case, conducted the discussion almost entirely on Huckabee’s terms. The articulate former preacher set forth the importance of a “culture of life” and how abortion denigrates it by permitting abortions triggered by comparatively trivial concerns about the “inconvenience” of the pregnancy. Huckabee emphasized that every human life has value.
Stewart responded with a classic defense of a woman’s right to reproductive autonomy. His embrace of the pro-choice position focused almost exclusively on a woman’s right to control what happens to her body.
Missing entirely from this conversation was any articulation of why a woman might choose an abortion and why many women (and supportive fathers, husbands and boyfriends) might view it as a profoundly moral act. Huckabee’s references to “tak[ing] a human life” because the baby represents an “interference” or an “interruption” to the mother’s life, socially or economically, fails to acknowledge that the woman’s decision is likely to be heavily influenced by concerns about the fate of the child rather than selfish concerns. Stewart’s defense of a woman’s right to bodily integrity, though more sympathetic, reinforced Huckabee’s notion that pregnancy is the issue..
We know of no women (other than those facing serious health issues) who would choose an abortion because of the effect of the pregnancy. Instead, women choose abortion because they care profoundly about the future of their children. Women who elect abortions know that true commitment to a child is an enormous – and lifelong – undertaking. The pregnancy is the easy part. They know also that to raise a child properly requires resources, support, and maturity. They understand as well that the number of children for whom they can provide a decent chance in life is limited. Having a child at seventeen, if it derails the mother’s life chances, shortchanges that child and the children she might have later. Having a third child when a mother is struggling to provide for the two she already has diminishes the prospects for all of them. Women who choose to terminate a pregnancy because of the supposed “economic inconvenience of the pregnancy” are making a decision that they cannot provide adequately for that child at that point in their lives. It is because of a profound appreciation of the value of children’s lives, not a casual disregard for them, that women choose abortions.
While adoption provides an acceptable alternative for some women, many women do not want their children to be raised by someone else. Women in a small exploratory study of why they obtained abortions explained that they rejected adoption because “the thought of one’s child being out in the world without knowing if it was being taken care of or who was taking care of it was more guilt inducing than having an abortion.”
As governor of Arkansas
It is time to redefine the abortion debate. Those who passionately defend a woman’s right to choose also care passionately about a culture of life that is committed to bringing children into a world in which every child has a decent opportunity to flourish. As we discuss in our forthcoming book, Red Families v. Blue Families (OUP 2010), pro-choice advocates need to highlight the fact that the women most likely to seek abortions are those who are most likely to lack access to effective contraception, viz., the poor, the naïve, and the isolated. They are the same women who choose abortion because they are the mothers least able to provide for the children who might result – and those most vilified by the supposed pro-life group who routinely oppose support for children.
Pregnancy is not the issue; care and commitment to your children is. Which is the true “pro-life” position?
Monday, June 08, 2009
Federalism and Abortion
Today’s Washington Post includes a depressing article for those of us who are pro-choice. The article documents how the abortion fight has moved to the state level, and details some of the means by which anti-abortion groups are chipping away at a woman’s right to choose.
My first job after I graduated from college was working at the National Abortion Rights Action League. True, I was a mail clerk, but, as I checked packages to make sure that we were not receiving any bombs, and as I mailed out material supporting the right to choose, I felt like I was doing good and meaningful work. Almost 30 years later, I can’t believe how little has changed in the culture wars over abortion, and I’m struck by how much positions have hardened.
When the Supreme Court guaranteed the right to choose in the seventies, the focus was on the changing lives of women, and the often tragic circumstances of those resorting to risky, illegal abortions. Today, the women seeking abortion have almost disappeared from sight, replaced, when they are thought about at all, by inaccurate caricatures that overlook the fact that poor women who lack systematic access to effective contraception are those who have the greatest need for access to abortion. The overlooked issue in the abortion debate is its effect on poor women, who are more likely to get an abortion than are wealthier women. As the Post article notes, poor women are disproportionately affected by the practicalities of obtaining an abortion and by legal restrictions. The Guttmacher Institute reports that the abortion rate for women whose income is lower than the federal poverty level “is four times that of women above 300% of the poverty level (44 vs. 10 abortions per 1,000 women).” The higher rate is, at least partially, due to the much higher rate of unintended pregnancies among poor women.
Even when they are able to obtain abortions, two-thirds of poor women report that they would have liked to have undergone the procedure at an earlier time. Clearly, access to abortion is critical to the reproductive choice for poorer women. The decrease in the number of abortions through the nineties was, perhaps surprisingly, not primarily due to legal restrictions on abortion. Instead, the decline was based, at least in part, on states making a commitment to sex education that was not abstinence-only and on states making contraception widely available.
As June Carbone and I have argued, reproductive autonomy is most readily available for the affluent, and it is increasingly beyond the reach of the most vulnerable. Family planning efforts of all kinds have been the biggest casualty of ideological politics.
Friday, June 05, 2009
June Wedding Announcements
Gay marriage is, once again, in the news. As of Wednesday, New Hampshire became
the 6th state to allow same-sex marriage, and gay marriages can be officiated there
as of January 1; Dick Cheney, whose daughter, of course, is gay, thinks that gay
marriage is something the states should work out; and some 18,000 same-sex
California marriages are legal, even though same-sex marriage is otherwise illegal
in the state. And then there’s Surrogate (and former CUNY Law School Dean)
Kristin Booth Glen’s opinion in In re Sebastian (N.Y. Surr. Ct.
Apr. 9, 2009). She granted one lesbian spouse's petition to adopt a son born to the other spouse. Judge Glen acknowledged that while "an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of [both his mothers] as his legal parents throughout the entire United States.”
Not surprisingly, all of the states in which same-sex marriages are recognized or in which they are legal are blue. June Carbone and I have written in Red Families v. Blue Families (Oxford University Press, forthcoming) that the new information economy is transforming the family, resulting in the development of two different family paradigms: red and blue. The blue family paradigm emphasizes the
importance of women’s as well as men’s workforce participation, egalitarian gender roles, and delay of marriage and childbearing until both parents reach emotional maturity and financial self-sufficiency. In this world, teen childbirth is a tragedy, gay and lesbian neighbors commonplace, and the consensual sexual lives of adults a matter of privacy. Red families, or more accurately, those who have pushed a “moral values” agenda, reject the new culture. They continue to emphasize religious teachings that celebrate the unity of sex, marriage and reproduction. Red regions of the country, however, have higher teen pregnancy rates, more shot gun marriages, and lower average ages of marriage and first births.
Same-sex marriage is, in many ways, critical to the terms on which the two paradigms will be defined going forward. Recognition of same-sex marriage has the potential to revitalize discussion about what marriage is for – and for whom it is compelled. The fear within the red family world is that recognition of same-sex marriage underscores the point that marriage is a socially constructed institution, governed by the law, rather than part of an eternal divine order. If marriage is humanly created and defined, then it is also changeable – and ultimately optional as a way to order intimate relationships.
On the other hand, the ultimate challenge to the red paradigm does not, of course, come from gays and lesbians. Instead, the real issue is sex – and the question of continued societal support for a principle – limiting all sex to heterosexual marriage – that no longer commands support from a majority of the population even in red states (though not necessarily the core red constituencies).
Tuesday, May 26, 2009
Padel's Resignation from Oxford
The AP via NYT reports:
Oxford University's first female Professor of Poetry resigned Monday after acknowledging she had helped publicize charges that her rival for the post had sexually harassed a former student. Ruth Padel,
the great-great-granddaughter of Charles Darwin, made history at Oxford when she became the first woman to be elected to the position of Professor of Poetry since the job was created in 1708....But Padel's election was marred by Nobel literature laureate Derek Walcott's decision to withdraw as a candidate from the election after anonymous letters attacking him were sent to Oxford academics. British newspapers reported that the letters made reference to an allegation of sexual harassment made against the St. Lucia-born poet by a former student in the 1980s. The papers said the letters included references from the book ''The Lecherous Professor: Sexual Harassment on Campus,'' by Billie Wright Dziech and Linda Weiner, which carries allegations against Walcott made by a Harvard freshman in 1981. At the time of his resignation, Walcott said he had never commented on the claims and would not do so now. But he called the anonymous letter campaign an attempt at character assassination. Padel came under increasing pressure after The Sunday Times quoted e-mails it said she had sent to two unidentified journalists drawing their attention to the book. In a statement announcing her resignation, Padel acknowledged sending the e-mails. But she said she did not engage in a smear campaign, explaining that she had only passed on information already in the public domain. ''I acted in complete good faith, and would have been happy to lose to Derek, but I can see that people might interpret my actions otherwise,'' she said in the statement. Oxford University, which has been embarrassed by the controversy, said it respected Padel's decision and that ''a period of reflection may now be in order.'' A new election is expected sometime before the current Professor of Poetry, Christopher Ricks, steps down from his post at the end of the summer.
What do you all think about this? Is it wrong to draw attention to material in the public sphere--or to do so anonymously when one is the other candidate for the position? Was Padel engaged in a form of anonymous cyber-bullying? Was Walcott's resignation an appropriate form of just deserts? What if Padel had been approached by the journalists and/or offered the information on background and acted in response to student concern? Is it really enough to warrant the claim that she won the professorship as part of a "scurrilous ... campaign"? Last, consider this provocative, but probably unreasonable, claim by one commentor for the Independent:
With Padel too, the shockwaves set off by her emails suggests that ambitious women are not allowed to play hard. Men can and do use any weapons they have when battling against competitors, but not so the gentler sex. How many male professors across the land can honestly say they have always played fair to reach where they are?
I confess, I have no idea how this issue would play out in the US. Some of it reminds me of The Human Stain and Disgrace--two super novels by Roth and Coetzee, respectively. Thoughts?
Tuesday, April 28, 2009
Privilege or Punish: Criminal Justice and the Challenge of Family Ties
Monday, March 09, 2009
Blind Submissions Revisited
As law review submission season rolls around again, perennial questions about under-representation of women and minority authors in law reviews come up. I am reminded of a passage from Blink, by Malcolm Gladwell, describing the dramatic results when orchestral auditions became anonymous:
Screens were erected between the committee and the auditioner, and if the person auditioning cleared his or her throat or made any identifiable sound - if they were wearing heels, for example, and stepped on a part of the floor that wasn't carpeted - they were ushered out and given a new number. And as these new rules were put in place around the country, an extraordinary thing happened: orchestras began to hire women. In the past thirty years, since screens became commonplace, the number of women in the top U.S. orchestras has increased fivefold.
I don't want to suggest that the analogy is perfect - the nature and experience of those selecting pieces/performers is different and maybe the "sound" of a law review article isn't as ungendered as an orchestral piece (see past posts on Prawfsblawg for a discussion of the "audacity factor"). But it does lead me to wonder about the blind submission practice of Harvard Law Review and a few other law reviews. They have been much discussed, but have these policies had any effect? And, if so, on what? A wider variety of author affiliation or seniority?
Wednesday, November 05, 2008
This is what a President looks like . . .
I was moved by Paul's post about the momentousness of last night's election and what it means about the America we live in today and the one we will wake up in tomorrow and the day after that. I also have a very young daughter and found myself thinking last night that as she grows and one day learns about the "President" -- the image her little mind will form will be first and foremost of an African-American man. How unbelievable and inspiring. Like many, I also grew teary last night as I listened to African-American parents talk about the joy they'll experience when they look their children in the eyes and tell them that they truly can achieve anything in America because an African-American man is the President of the United States.
To my surprise, however, I found myself aching for the day that I get to look my daughter in the eyes and tell her that she truly can achieve anything in America because a woman is the President of the United States. My reaction surprised me because I've been a long and passionate supporter of President-Elect Obama (Yay! It's so fun to say!) I was not moved by Sen. Clinton's candidacy or, clearly, by Gov. Palin's. But my reaction is highlighting for me how much role models really do matter. As a 1L at the University of Chicago, I did not have a female professor until the third quarter. All year I told myself that it didn't matter -- that contracts was still contracts and torts was still torts. But when I finally had my first female professor (Elizabeth Garrett for Civil Procedure), I realized it did matter. It mattered a lot. She was smart. She was qualified. She was tough. And she made it that much easier to imagine being in front of the classroom myself some day.
As I continue to celebrate last night's historic end to one discriminatory barrier, it's only making me increasingly anxious for others to fall too. I want it to be that much easier for my daughter to imagine herself in the oval office some day. I hope we don't have to wait too long.
Thursday, September 04, 2008
Within the tabloid-worthy litany of Sarah Palin disclosures was this: "And she had waited until she was seven months pregnant to make public news that she was expecting a fifth child this year." (The New York Times story is here.) First, hiding being seven months pregnant is an impressive feat - think Seinfeld's Elaine in baggy coats and careful camera shots. Although, as one Alaska-based blog points out, "Remember, it was February in Alaska."
When should she have disclosed her pregnancy? Many things can distract a politician from his or her job - illness, divorce, wayward children. In other words, politicians are humans too. Pregnancy is unusual in that it is visible (except, apparently, in Alaska in February). Should we (and do we) require politicians to reveal illness? When should a politician with prostate cancer reveal it? A politician who is going through a messy and distracting divorce? Or is there something special about pregnancy?
Wednesday, August 13, 2008
Women Lawyers on TV
This year's 50 Best Law Firms for Women survey is out (a good resource for students among other things). An accompanying article provides a timeline of "TV's Leading Women in Law." I'm not sure this subject has the appropriate gravitas for a real problem: the article and survey report that attrition rates for women at major law firms is about 76% by the fifth year and that 42% of women lawyers leave the profession at some point in their careers. But I did take a quick look. The premise is that "in pop culture, female lawyers are often powerhouses in their careers but struggle to fit family in - if at all." Here's a sample:
1993-1999: Sylvia Costas, NYPD Blue. Sylvia was a crusading ADA who fought to save her marriage to alcoholic detective Andy Sipowicz. After a maternity leave, she returned to work only to be killed in a courthouse shooting.
1997-2002: Ally McBeal, Ally McBeal. As a 28-year-old Harvard Law grad, Ally could only dream of babies. However, her hallucinations turned real when her 10-year-old daughter, the result of an egg-bank mix-up, showed up on her doorstep.
I guess we have to look for our role models elsewhere....
Sunday, April 06, 2008
From today's story in the New York Times about the "emotional stress" of round-the-clock blogging, here's the cut-line under a photo of a blogger at work: "Matt Buchanan shows blogs may be a young man's game."
P.S. I don't mean this sarcastically. Writers are not responsible for photo cut-lines, and headlines and cut-lines are made to fit in small spaces. But there was plenty of room for "person," wasn't there? Or there somewhat more circuitous "a game for the young?"
P.P.S. That said, I agree that constant blogging is stressful -- which is perhaps the reason why I've been remiss lately (that and the rising conviction, contary to blog culture, that if you have nothing to say, you shouldn't say anything). But much of the story is, of course, hyperbole, as if the writer could not have justified the story absent a set of overstated claims. Or implied claims, as the case may be: "To be sure, there is no official diagnosis of death by blogging, and the premature demise of two people obviously does not qualify as an epidemic...."
Wednesday, March 12, 2008
Punishing Family Status: Application of the Family Ties Burden Framework
In today's installment of Punishing Family Status, we discuss, among other things, why incest laws should be abolished...
In this Part, we undertake some analysis of the various family ties burdens we identified here and here. Recall that our framework asks the following questions. First, assuming the burden is imposed only on individuals based on their family status or familial connection to the crime, we must ask to what extent does the family ties burden in question implicate the normative costs of gender bias or unfair inequality? Second, assuming the burden implicates one or more of these concerns, to what extent does the family ties burden vindicate a compelling state interest? In other words, given the disruption the burden promises to wreak on other values, what are the countervailing benefits promised by its imposition? Finally, we must ask whether there are other less troubling means — means that can be crafted in terms that are neutral to family status — available to protect the interest underlying the burden. In situations where the case in favor of the penalty on the family appears to make sense, we argue that the burden should not be imposed on the basis of traditional familial status, but rather on the basis of care-giving relationships of autonomous choice.
In what follows, we do not exhaustively analyze each family ties burden – even from within our own framework. As we acknowledged at the very beginning, each of the burdens we’ve identified requires its own long-form analysis, taking account of its particularized context. Accordingly, all we endeavor to do in this Part is furnish a feel for how our framework contributes to a more comprehensive accounting in thinking through each family ties burden. We think our framework recommends caution about the bulk of the family ties burdens we’ve identified and urges creativity in redesigning these burdens to make them less discriminatory.
III. Application of the Framework to Family Ties Burdens
A. Omissions Liability
The question of omissions liability is a difficult one, and the analysis seems to vary according to the kind of status relationship at issue. Let’s begin with the most common scenario where we see liability imposed: prosecutions of parents who fail to protect their children from harm. As an initial matter, we need to acknowledge that imposing liability on a parent for failing to protect a child from harm certainly has the potential to perpetuate inequality and discrimination. It undoubtedly is facially biased against homosexual couples, many of whom cannot have legal children. More, we know enough about prosecutorial practices to be concerned that omissions statutes are used in a way that may perpetuate stereotypes about gender. Thus, in particular situations, it might be a male father who is battered, and our approach to omissions liability does not hinge on the precise identity of the defendant qua mother. But it is important to acknowledge that in some forty to sixty percent of cases where children are being battered, a parent (usually the mother) may be the victim of battering as well. The victims of violence may have few available options to remove their children from an abusive situation. They may correctly perceive that attempts to leave will escalate the violence. They may have no economic options in terms of being able to find housing or a job that will provide sufficient income to support a family.
Thus, it bears mention that there are practical options available to help mitigate the potential disparate impact of omissions liability. For example, as a policy matter we should partner any attempts to hold parents accountable for their failure to protect with efforts to make it more viable for battered spouses to leave abusive partners – more funding for shelters, for example, and provision of job training and child care resources.
There could also be limitations to when we seek to impose liability. First, in contexts where omissions liability is established in cases involving child abuse, we should limit liability to those circumstances where a parent had prior knowledge of past abuse and had the practical opportunity to seek help, such as access to a telephone to contact law enforcement authorities. Second, in many instances, parents who fail to protect in a case involving a fatality should not face the same homicide charge as the actual killer but instead should be charged under a separate statutory scheme, carrying lesser penalties, criminalizing a failure to protect. A separate statutory scheme would better reflect the idea that there is a meaningful moral distinction between actually inflicting the fatal blows and, for example, making the mistake of leaving a child alone with an individual who has been abusive in the past.
But ultimately, imposing liability on parents for failing to protect their children vindicates a compelling state interest – the need to protect children from harm. It is in this scenario that our concerns about fostering the care-giving capacity of individuals reach their zenith. Young children are simply helpless to protect themselves from harm; that responsibility must fall on the shoulders of those adults in the position to be a child’s only lifeline. Parents who have voluntarily chosen to retain the benefits conferred by the parent-child relationship should endure some burdens in return, and surely ensuring the safety of a child society has entrusted to the parent’s care represents the most fundamental of reasonable burdens. When a person opts to have children, the parent is, as we suggested earlier, signaling to the society and state that the parent will be a first responder.
In this respect, imposing a duty to rescue here is analogous to the imposition of liability on those people who have “waved away” others. Our goal, of course, is not to tie an albatross around the neck of every parent. Omissions liability doesn’t create a responsibility to rescue against unreasonable risks. It operates only to ensure that when a parent is in a position of protecting the child from imminent harm, the parent takes those measures. In practical terms, it’s a recognition that the parent is usually (but not always) in the best position to bear this burden – no other adult ordinarily has the same access to, or opportunity to observe, a child in situations that prove dangerous.
It is necessary to recognize an additional important caveat to the above discussion: not all children live with their biological parents. A child could reside with another relative, such as a grandparent, or a family friend, or a foster family, to name just a few possible permutations. Therefore, limiting omissions liability to biological parents and their children has the potential to be under-inclusive, in that it does not recognize non-traditional relationships of care-giving. An opt-in, or opt-out, system seems unsatisfactory when it comes to children, however, because children simply cannot be expected to utilize a registry and more fundamentally, children are without resources to avoid their own vulnerability or sufficiently protect themselves from harm through other means. Therefore, we propose a test that focuses on something other than biological parenthood: does the individual in question stand in the position of a primary caregiver to the relevant child? If the answer is yes, then that individual can face liability for failure to protect on an omissions theory absent any relevant and compelling excuse or justification. This would avoid the over-inclusiveness problem of relying on biology too. There might be situations where a biological parent has parental rights terminated, and in those situations, we think there should be no duty to rescue under the criminal law.
What about children who are no longer minors? Do their parents still owe them a duty of care, or should we go further and impose a reciprocal obligation, in that adult children should be charged with a duty to protect their parents? Adult children seem in a fundamentally different position than minor children – they can both utilize a registry system and have more options available to remove themselves from a dangerous situation. In addition, the dynamics of the relationship may be very different with an adult child; it may seem justifiable for parents to wish to sever a relationship with a child who has committed a heinous crime, or even victimized his parents, for example, whereas we would not allow parents of a minor child to walk away from their obligations to that child because of the child’s misconduct.
While the urge to promote an ongoing ethos of reciprocal care between parents and children is a powerful one in some cultures, we must bear in mind a child’s relationship with his parents is not voluntary in the same sense as a parent’s relationship to his children; after all, no child asks to be born, let alone to these parents. Thus, it is no surprise to us that many jurisdictions are reluctant to impose such liability now, even when that position leads to seemingly unjust results. Because of the non-reciprocal voluntariness problem, an opt-in registry makes sense in the context of adult children who wish to signal their compacts of care with their parents. And if they want, parents can opt to signal their ongoing commitment to their children by agreeing to face liability for failing to protect them as adults.
As to spouses, this analysis calls for refinement. Any potential prosecution of a spouse for failing to protect his or her spouse from harm also has the potential to have a discriminatory impact, in a different and critical sense: it treats differently those who cannot, or who choose not to, enter a spousal relationship sanctioned by the state. For example, these laws currently do not clearly permit those who are family members of homosexual couples to take the same comfort in knowing that omissions liability is parceled out in a non-discriminatory fashion. One way to see this discrimination is through analogy: if omissions liability were restricted on the basis of race, such that whites had a duty to rescue their spouses but blacks did not, what message would that send? Clearly one that devalued the spouses of black people. The same is true by restricting omissions liability along lines that are tethered to the few family status relationships recognized by the state. Why should a heterosexual man have an obligation to protect his spouse from harm when a gay man does not? Why should a close friend of many decades escape liability for failing to protect when a brand-new bride does not? In both instances, imposing liability serves the same valuable functions: in concrete terms, it fosters safety, and in normative terms, it promotes an ethos of care. Thus, limiting omissions liability to those in a state-sanctioned relationship seems plainly under-inclusive – it leaves out those who choose not to be married and, more problematic, those who cannot get married because of a plainly troubling and blatantly discriminatory moral choice made by the state.
For the most part, we don’t have much problem with marriage being an over-inclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we would support decoupling omissions liability from marriage and instead ask both parties to a marriage to register as first responders for each other, the way we would ask any other person to signal his expression of commitment. Thus, for example, individuals who voluntarily have chosen to live with a partner in a romantic relationship, regardless of whether that relationship is officially recognized by the state, would be able to signal their commitment of care.
What about relationships outside these two primary categories of spouses and parent-child, such as siblings or cousins or roommates? Any decision by the state to impose a legally enforceable relationship of care-giving seems most problematic here. For those relatives outside the parent-child or romantic partner context, we simply cannot say these relationships have been entered into voluntarily – no one chooses their siblings or cousins (though maybe one does choose roommates after college…). In the context of platonic roommates, imposing a duty of care would be a drastic restructuring of the traditional boundaries of that relationship. On the other hand, we certainly believe that individuals should be able to choose a legally enforceable relationship of care-giving through the use of a registry. This allows individuals to signal their commitment both to each other and to those around them. It is, of course, possible that very few individuals will choose to register – why would they voluntarily assume the risk of a legal liability that they currently do not face? But if that is the outcome, we are no worse off than we are now, as these individuals do not currently face liability.
If, on the other hand, some individuals do choose to enter into a legally-recognized relationship of care-giving, the benefits that decision conveys in terms of promoting safety, and promoting an ethos of care and compassion, certainly seem worth the effort. We can also imagine the state incentivizing such registrations through small tax breaks or norm entrepreneurs (think of faith groups) that mobilize “opt-in days” to foster solidarity among members of their communities or sub-communities. And because peoples’ relationships ebb and flow, we could imagine that the registry would permit people to withdraw from these covenants of care-giving if notice is given to the affected parties.
Allowing more private-ordering in the context of criminal law regulation here (with sufficient attention to third-party harms) is consistent also with the suggestions we make next in the contexts of incest, bigamy, and adultery.
B. Vicarious Liability
The first three forms of vicarious liability discussed in Part I.A – truancy laws, curfew laws, and contributing to the delinquency of a minor – seem relatively uncontroversial to most people, because in those instances the adult in question has committed an affirmative act with a culpable state of mind, the traditional core requirements for a crime. So, in some sense, these are better viewed as “impure” vicarious liability laws. But if the laws in question only create criminal liability on account of a person being part of a designated family relationship, where the absence of that family status wouldn’t trigger liability for the same conduct, then those laws warrant scrutiny under our framework.
As might be expected, we remain skeptical of these sorts of laws because to the extent that they reinforce special duties that flow in light only of state-sanctioned family status, they are simple family ties burdens. If an element of a vicarious liability crime is a relationship of family status, it would offend basic principles of equal treatment, since those in relationships of autonomous care-giving that behave identically but do not have ties of family would not be considered culpable. That result cannot stand, if the liberal state takes seriously the idea of approaching all its citizens with equal concern and respect. Accordingly, to the extent that the states that embrace these regulations think they are necessary, we would urge those legislatures to draft their laws in ways that do not burden the family directly. We can imagine several ways around this problem, whether it involves exacting liability on all voluntary care-givers – or more carefully circumscribing these crimes so that family status is not used as an element.
More controversial still are the strict liability offenses. Should a parent or other caregiver be prosecuted on a strict liability theory, facing criminal sanction simply because the child under her or his care has committed a crime? Put most starkly, does one’s status as a caretaker suffice to warrant perhaps the greatest family ties burden of all: sanction through the criminal justice system for the criminal conduct of another solely because of family status?
We think the answer must be no in the absence of a blameworthy state of mind and an actus reus
Let us illustrate with a concrete example. Imagine a parent goes out on a date and leaves a twelve year-old alone in the house with unsecured firearms and an unlocked liquor cabinet, when the parent knows the child has attempted to play with the guns and drink liquor on prior occasions. If the twelve year old proceeds to get drunk and use the parent’s gun to shoot up the neighbor’s car, the parent has been reckless, or at a minimum, negligent by “failing to exercise reasonable control” over the child. Imposing liability in this scenario will signal both to this particular caregiver, and other caregivers in the community, that caregivers must supervise their children more vigilantly.
But imagine instead that the child buys the gun in a school locker room with his money from an after-school job and shoots up the neighbor’s car on the way home from school, despite repeated admonitions by the parents to stay away from guns and people with guns. Under an ordinance like the one passed (and struck down) in Ohio
Thus, as a general matter, we are dubious about the value of these statutes both as to their capacity to reduce crime through parenting vigilance or to signal commitment to parenting values. Equally important, we note that limiting vicarious liability to those in a state-sanctioned family unit seems underinclusive and discriminatory. If these statutes are to do the work of crime-reduction that its supporters promise then they should be structured in such a way that they apply to all those who have voluntarily assumed care-taking and custodial responsibilities for the minors in their households. In other words, if vicarious liability is embraced by legislatures because of its crime-reduction promise, then it should be applied whenever there is a relationship of asymmetrical dependency and voluntary care-giving, and not just a strictly construed version of biological parent to child. For at least this way, more of the deterrence will be achieved by extending its ambit to same-sex or non-married child-rearing partners, and the importance of the care-giving value will be communicated to those who have opted to raise children.
As we discussed in Part I, there are various kinds of incest rules: some regulate conduct regardless of the age of participants, some regulate conduct regardless of the consent of the participants, and some regulate conduct among intimates regardless of an actual blood relationship. Unsurprisingly, there is overlap across these categories depending on the jurisdiction.
As we develop below, we think that at least as to some of these relationships, the state should step in to proscribe the sexual conduct – and with regard to others, the state should step aside. In order to determine whether there’s a kind of inequality or arbitrary discrimination apparent in the incest context, we need to have some baseline principles that would help us assess the state’s intervention in a specific situation. We can think of two relatively uncontroversial principles. First, because of the high likelihood of implicit or explicit coercion, prohibiting sexual relations between those sharing an asymmetrical relationship of dependency should be permissible, regardless of whether the dependency relationship is established through consanguinity, through marriage, or through the assumption of caretaking responsibilities. Second, consensual sexual relations between mature adult individuals not otherwise in a relationship of asymmetrical dependency should be permitted. How do these principles apply in the context of the categories of incestuous relationships to which we adverted in Part I?
As to relationships between non-dependent adults, we think it is straightforward that a respect for autonomy and limited government permits consenting individuals to engage in the sexual relations they deem appropriate without fear of criminal sanction. That’s not to say we necessarily endorse any of these relations; rather, we simply think the state should not be treading upon the intimate associational rights of mature individuals. As they stand, the current laws chill consensual activities by adults that should be unencumbered by threats of arrest, prosecution, and punishment. We recognize the concern that incestuous relationships have the potential to be abusive and nonconsensual, and we think that these concerns are substantial and important. But in the context of adults, these problems can ordinarily be punished through the traditional crimes tracking lack of consent: i.e., the crimes regulating sexual assault.
We acknowledge that in some circumstances those available laws may be unsatisfactory. For example, it is quite possible that the coercion involved in an incestuous relationship would be psychological rather than physical, and many states still do not consider psychological coercion sufficient to satisfy the required elements of their rape or sexual assault statutes. Thus, although our background laws forbidding sexual assault and rape may be sufficient bases for prosecuting and punishing offenders in cases involving physical coercion, it is important to recognize that the current status of rape law may leave some non-consensual incestuous relationships outside the reach of criminal law sanctions, and reform of current rape laws continues to be an important goal. But in those truly consensual mature relationships that are the focus of this section, prohibiting adult step-siblings or any other adult couple from having relations is a form of mere squeamishness – at least from a liberal criminal justice perspective which is not seeking to impose a particular sexual morality.
Some might raise objections to decriminalizing consensual adult incest based on fears about genetic repercussions. But at least with respect to those not related by consanguinity, there is no basis for genetic fears at all. Admittedly, such fears increase when we’re talking about closely related persons, such as brothers and sisters. But as others have noted, “in no other legal realm does the government criminally prohibit two people from having children because their offspring are more likely to inherit genetic defects.” Put simply, we have long since retired the idea that eugenics preferences are a reasonable basis for criminal justice policy. To wit, Tay Sachs disease and sickle-cell anemia could be nearly wiped off the face of the earth if we regulated who could reproduce with whom based on such genetic sensitivity. We think there is good reason to acknowledge that the criminal law cannot be used to serve eugenic ends.
Related to the genetics-based fears is concern for the economic costs of allowing incestuous relationships. In other words, some might be tempted to justify criminal law incest prohibitions to reduce the costs associated with increased medical care for children of consanguineous parents. Again, the solution of using incest prohibitions is both over-broad and under-inclusive. First, some couples deemed incestuous may choose not to have children or may not be able to have children, and yet their conduct would still be subject to criminal sanction. Second, we don’t use the criminal law as a tool to reduce potential medical costs in any other context. When we criminalize murder or theft, it is not because we want to keep insurance payments down: it is because murder or theft is wrongful. Third, if we were genuinely concerned about increased medical costs, we could means-test all couples contemplating having babies with high risks of disease or complications. But this would be both an offensive policy to many people and it would sweep in far more persons than those who are blood relatives.
Concerns about relationships between adults and minors are far more weighty than in the context of consenting adults. While all of us agree that the possibility of coercion is far more significant in this context and that it is less likely that the minor in question is capable of truly informed consent, we disagree among ourselves how much to credit the consent of minors who choose to have sex with adults to whom they are related, and what measures might be taken to prove such consent to the state. Although many states have a variety of statutory rape laws available to punish and deter this kind of activity, these laws may not be sufficient to address all the possible permutations of relationships. Thus, we should also adopt laws that prohibit sexual relations between asymmetrical dependents. Examples of asymmetrical dependents include, on the one hand, foster parents, adoptive parents, step-parents, and biological parents and, on the other hand, all minors under their charge and responsibility until that dependent is no longer under their charge and responsibility. Such a law would emit a clearer signal of which relations are prohibited than the mishmash that characterizes current incest laws.
As to sexual relations strictly among minors, we are not all of one mind – proving the point, perhaps, that our lens of access to these laws does not require a singular conclusion on all family ties burdens. At least one of us (Markel) thinks that sex between minors should also be regulated in family-neutral ways. This would mean that either the criminal law applies to prohibit sexual activity for all persons under a certain age or that the criminal law does not apply in the context of consensual relations among those credited with the capacity to consent. Thus, there would be no categorical rules prohibiting sexual conduct between, say, seventeen year olds on the basis of family status alone. Under this view, those worried about physical or psychological coercion or abuse or retaliation can simply rely on the laws available to punish that independent misconduct. If sexual relations are to be decriminalized for those over an age of consent, then it should be immaterial from the state’s perspective whether they are brothers or first cousins or friends. The key would be to ensure an absence of coercion or abuse.
But at least one of us (Collins) finds these conclusions troubling. Accordingly, sex between minor siblings, for example, does not implicate a significant liberty interest that is worth protecting. In addition, some of the concerns used to justify incest bans take on heightened importance in the context of minors. For example, because the potential public health ramifications of incestuous sex are admittedly non-negligible – and because it would be extremely hard for minors to give meaningful consent to such complex sexual relations – there may be sound reasons to preserve criminal statutes against incestuous sex among minors. Minors, because of their emotional immaturity, are more vulnerable to forms of psychological coercion. In addition, minors in incestuous sexual relationships may be less likely to seek outside help in ending the relationship. It would seem far easier, for example, to report your 40 year old uncle to the authorities for pressuring you to have sex than it would to report your brother. One of us (Leib) can’t make up his mind, though his sympathies are largely with Collins.
However one redrafts criminal law in the incest arena to address the various difficult issues surrounding adult-adult, adult-minor, and minor-minor incest, we doubt we will gain much traction with the political community that favors these laws. In large part, these relationships are criminalized because Americans view them with distaste or because they are, in some situations, religiously proscribed. Nonetheless, we have reason to believe that these prohibitions, regardless of their motivation or provenance, are problematic from a civil liberties perspective, especially in the context of mature individuals engaging in consensual relations. And by operating in the rigid and uncritical manner that they do, most incest laws are an unjustifiable burden as currently crafted.
In sum, when we apply our normative framework from Part II, we see that in many jurisdictions, incest laws by their scope – that is, by their failure to track consent – serve as a burden imposed on those engaged in otherwise legal conduct on the basis of a defendant’s familial status or familial connection to the crime. We find this burden constitutes a form of unwarranted discrimination, by inhibiting the intimate associational rights of consenting mature individuals, because it cannot be justified in light of other substantial government interests – the plausible fears associated with abusive incestuous practices – that can be promoted through more narrowly tailored alternatives.
 Again, here we would refer the reader to our earlier stated conviction that most problems that have a disparate impact on families are best regarded as problems that need to be addressed in the criminal justice system for all those concerned, regardless of whom it affects. So if one has a particular problem, for example, as we do, with the war on drugs and how it often leads to over-incarceration, the solution is not to have a band-aid for families but rather to fix the underlying policy of over-incarceration.
 If there are concerns about accuracy or crime-creation, then those should also be noted. See id.
 The fact that a mother is charged in the failure to protect scenario is a powerful example of the “mother-blaming” phenomenon that affects not only our legal institutions, but also our cultural norms about parenting. As Professor Becker states, “[M]others are expected to be much better and more powerful parents than fathers, always putting their children’s needs above their own and protecting their children from all harm.” See Mary Becker, supra note 55, at 15; see also Naomi Cahn, Policing Women: Moral Arguments and the Dilemma of Criminalization, 49 DePaul L. Rev. 817, 822 (2000) (“Cultural middle-class norms expect all women to be primarily responsible for their children. The criminal justice system supports this norm by criminalizing the abusive and neglectful behavior of parents, punishing mothers particularly harshly.”); Jane Swigart, The Myth of the Bad Mother: The Emotional Realities of Mothering 6 (1991) (“we live in a society that simultaneously idealizes and devalues the mother”).
 See Bernardine Dohrn, Bad Mothers, Good Mothers, and the State: Children on the Margins, 2 U. Chi. L. Sch. Roundtable 1, 3–4 (1995) (discussing domestic violence and child abuse as strong predictors of each other).
 See Becker, supra note 55, at 19 (noting that women are sometimes murdered after leaving an abusive spouse).
 See id.
 See id. at 31-32 (urging the provision of stronger “safety nets” for women in abusive situations); see also Linda Gordon, Feminism and Social Control, in What is Feminism? 63, 69 (Juliet Mitchell & Annie Oakley, eds., 1986) (“Good social policy could address the problem of wife beating in part by empowering women to leave abusive situations, enabling them to live in comfort and dignity without men”).
 We say “in many instances” because presumably there may be some cases where the more passive parent is just as culpable as the actual abuser, by providing active encouragement or a weapon or the like.
 Finally, a spouse’s history of abuse should certainly be a relevant consideration for a judge at the time of sentencing.
 As Mary Becker has written, “[T]he assumption should be that the adult who was not literally a hostage—not literally coerced at every available second—could have acted to end abuse,” at least by picking up the phone and calling 911. Becker, supra note, at 55. Becker adds, “No matter how weak the mother, she is in a much better position than the child to prevent abuse and owes a duty of care to her children.” Id.
 Indeed, the child at issue in Jones, supra note 7, resided with a family friend at the time of his death
 It is important to note that more than one individual could fall into this category – for example, both the mother and the father of the child, assuming they both live with the child, and a grandparent who also lives in the home.
 We leave aside for now whether the age of majority for this purpose should be dropped from 18 to a lower age, such as 16.
 See Billingslea v. Texas
 See, e.g., People v. Beardsley, 150 Mich.
 We were unable to find a reported case addressing this precise scenario. In light of the extent of discrimination against gay individuals in this country, however, we think it far too risky just to hope that courts in all states would extend the same protections and obligations to individuals in a homosexual relationship as they would to individuals in heterosexual relationships. As a point of comparison, states are split about whether to allow same sex partners to recover in tort for wrongful death or infliction of emotional distress, even those states with domestic partnership laws. See D. Kelly Weisberg & Susan Appleton, Modern Family Law: Cases and Materials 404 (3d. ed 2006) (describing split among states on issues regarding tort recovery for same-sex couples).
 By decoupling omissions liability and marriage, we don’t run the risk of punishing what amounts to a purely private breach of contract through criminal law. Since there’s no bilateral exchange or consideration with our omissions registry, but a declaration to the state, the state may decide to punish those who make false claims to the state, or those who lull the state’s agents into complacency vis-à-vis a particular person.
 Our focus on voluntary care-giving as providing a useful basis for “imposing” liability in duty to rescue cases is consistent with the recommendations in Ethan J. Leib, Friendship & the Law, 54 UCLA L. Rev. 631 (2007).
 Cf. State Md.
 Asymmetrical dependency refers to relationships where one person possesses substantial authority and responsibility over another person who is largely dependent for his or her well-being on the authority-wielding person. Martha Fineman elaborates upon this notion. See Martha Albertson Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies 8 (1995).
 Here we largely agree with the observation Justice Scalia’s dissent in Lawrence v. Texas, in which he noted that the Court’s majority reasoning makes it difficult to resist the conclusion we draw regarding consensual adult relations.
 See Dan Markel, The Sex-Ed License, Redux, available at http://prawfsblawg.blogs.com/prawfsblawg/2008/02/the-sex-ed-lice.html (Feb. 19, 2008) (discussing shadow effects of incest, adultery, polygamy laws); Kaye L. Levine, The Intimacy Discount: Prosecutorial Discretion, Privacy, and Equality in the Statutory Rape Caseload, 55 Emory L.J. 691 (2006) (lamenting shadow effects on consensual activity in statutory rape context).
 See Cahill, supra note 62, at 1569. Cahill cites a number of courts that referenced these rationales in upholding incest laws. See, e.g., In re Tiffany Nicole M, 571 N.W.2d 872, 878 (Wisc. Ct. App. 1997) (citing both the possibility of “genetic mutation” and the need “to protect children from the abuse of parental authority”); State v. Kaiser, 663 P.2d 839. 843 (Wisc. Ct. App. 1983) (same). McDonnell cites a related concern of preventing the family from becoming “oversexualized,” with family members viewing other members as potential sexual partners. McDonnell, supra note 65, at 353.
 See Note, supra note 61 (developing this argument).
 See, e.g., State v. Thompson, 792 P.2d 1103 (Mont. 1990) (concluding that a high school principal who threatened to block a student’s graduation unless she consented to sexual intercourse could not be convicted of crime of “sexual intercourse without consent”).
 We recognize that some proponents of incest laws may be sincerely motivated by religious views or other comprehensive moral views, but those views, in a liberal society sensitive to the rights of minorities, are not necessarily views that a liberal criminal justice system must abide by. We also recognize there is a important separate issue of whether any incestuous marriages should be permitted; our inclination is to say that it’s not the state’s role to determine which adults should be entitled to receive the privileges of marriage. Nonetheless, our focus here is on decriminalization and we restrict our discussion to that.
 Note, 119 Harv. L. Rev. at 2468 n. 31 (“The likelihood that offspring of very closely related partners (parent-child and siblings) will have a genetic disease is about 13%, which is much greater than the likelihood that two strangers, with no family history of the disease, will have a child with such defects, which is 0.1%. Two less closely related partners, such as first cousins, have a slightly greater than 3% chance of having a child with a genetic defect.”) (citations omitted).
 Note, supra note 64, at 2468
 As to how these concerns are addressed outside the criminal justice system, we are more ambivalent. We recognize that some might try to distinguish eugenics (which might be thought to perfect a given gene pool) from genetics- based fears about incest, which are trying to avoid harms to future humans, as opposed to perfecting them. The problem with this distinction is that it assumes a moral baseline of non-incestuous relationships; if a community had endorsed incestuous relationships historically, then efforts to ban such relationships would be viewed by that community as “eugenics” by virtue of the goal of trying to improve the general issue of the community.
 It is our view that current incest laws are not terribly effective in regulating adult-minor sex. To the extent that incest laws produce sentencing discounts to sexually abusive family members, the incest regime is complicit in extending a family ties “benefit” with no adequate justification for under-punishing those who sexually abuse their dependents. See Markel, Collins, & Leib, supra note 2. Additionally, one of us has argued previously that our current laws fail to protect children from adult predators adequately, see Collins, supra note 2.
 Professor Markel, for instance, holds the view that if someone aged fifteen to eighteen invites and chooses consensual relations with another person aged 15 or higher, then that person should be able to engage in that relationship provided certain (admittedly difficult) conditions are satisfied. For example, we could have a policy by which sex education courses would be a prerequisite for sexual activity in the same way that driver education in some jurisdictions is a prerequisite for permissible driving. On this view, all persons under 18 wishing to have sex without fear of prosecution would have to secure a sex-education license, which they could get from a variety of possible private or public sources. See Dan Markel, Is Teen Sex Like Teen Driving? The Uneasy Case for the Sex-Ed License, at http://prawfsblawg.blogs.com/prawfsblawg/2008/02/is-teen-sex-lik.html. The education would foster awareness of pregnancy, birth control techniques, genetic risks, disease, and physical and psychological coercion. Additionally, even with such a sex-education license, adult-minor or minor-minor sex (regardless of consanguinity) would be presumptively or categorically prohibited when there is a relationship of asymmetrical dependence or co-habitation or supervisorial relationship in school, work, or extra-curricular activities. Last, in situations where there is a substantial age difference which could imply coercion, the relationship’s sexual turn would have to be declared in advance to a regulatory agency (or designated authorities) to certify that these conditions have been satisfied. Prosecution for statutory rape would be threatened in the absence of compliance. See also Dan Markel, Sex With Minors, Sex Between Minors, at http://prawfsblawg.blogs.com/prawfsblawg/2008/02/sex-with-minors.html; Dan Markel, Marriage of Minors, Marriage Between Minors, at http://prawfsblawg.blogs.com/prawfsblawg/2008/02/marriage-of-min.html.
 Such laws would also reduce (though, admittedly, not eliminate) “intrafamilial sexual jealousies and rivalries.” Unfortunately, many kinds of jealousies and rivalries are endemic to family life and it is not entirely clear there is a good basis to single out some concerns for criminal law sanction as opposed to the myriad other ones that could erupt in a given context.
 See Note, supra note 64, at 2469-70(detailing the confusing pattern of incest laws).
 As discussed above in note 175, we could permit or require the factfinder to infer that coercion is present in certain circumstances: e.g., do the participants live in the same home together, does one person serve in a care-giving or supervisorial role to the other? But both those questions would cut across family status blood lines. Concerns about medical risks and pregnancy would be addressed through the use of a sex-ed license, which would help secure a safe harbor from prosecution.
 See Mahoney, supra note 63, at 28(describing how “community norms” are one of the rationales for incest legislation). She also offers religious history and family welfare as potential justifications for incest bans.
 Cf. Lawrence v. Texas, 539 U.S. at 599 (Scalia, J., dissenting) (noting that the liberty rationale for invalidating bans on same-sex sodomy statutes entails the invalidation of much other morals legislation including bans on consensual incestuous relationships).
Tuesday, March 11, 2008
Where Were the Feminists When Elizabeth Vargas was Mommy-Tracked?
Feminists are speaking out in droves regarding Hillary Clinton’s presidential bid. Her treatment by the media, opponents, and pundits is getting careful scrutiny from women’s advocates. That’s great. But the attention has caused me to re-focus on a question I had two years ago, which still bother me.
Where were the feminists when Elizabeth Vargas – brief holder of the “permanent” anchor position at ABC World News Tonight – had to give up her post upon becoming pregnant?
There are two important aspects to the story that beg for feminist scrutiny. First, Vargas left her position early in her pregnancy, and “voluntarily” chose not to come back to the anchor-chair after giving birth. Press-release pleasantries aside, it sure looks like mommy-tracking. This is an issue that is explicitly legal in nature, as it raises the prospect of colorable employment-discrimination claims under federal law. Where were the feminist law professors to lend this story a critical eye, forcing these concerns into the national consciousness?
The second facet of ABC’s maneuver begging feminist scrutiny is that Vargas’s downgrade came after her male co-anchor, Bob Woodruff, was sidelined following a severe head injury suffered in a roadside bombing in Iraq. The questions raised by this aspect are less legal than social, but deserving of examination nonetheless: Did ABC decide it could tolerate a woman in the anchor chair only if the feng shui on set was put into balance by a male presence?
[More after the jump ... ]
The three major-network anchor chairs are positions of enormous influence and power – arguably more significant – and I know I’ll get flak for this – than seats on the U.S. Supreme Court. While each justice gets only one of nine votes on the Court, each national anchor is one of only three people who deliver, and thereby shape, the national news for millions upon millions of Americans. Anchors generally wield considerable power over story selection and editing as well.
There are few people suited for anchoring the national news. Candidates need to be able to use disarming ebullience in one instant, and mass-casualty gravitas in the next. They have to project a sense that they could share a good-natured laugh with you over coffee, yet be your polestar in times of history-turning tragedy.
It’s a talent that NBC’s recent hire, Brian Williams, appears to lack. He would deliver the news of National Candy Day the same as he does for genocide: Punching. Three words. In every sentence.
Katie Couric, the new face of the CBS Evening News, also seems to lack the ability. After debuting to considerable fanfare, her sinking ratings quickly became tabloid fodder.
Virtually everyone who has done the national anchor job brilliantly has been male – Peter Jennings, Tom Brokaw, Walter Cronkite. Yet Vargas possessed the rare gift. Perhaps ABC could not overcome the image of a male anchor in their mind’s eye. But isn’t that why we have federal employment discrimination law? Too bad public intellectuals didn’t force America to confront the issue.
Analyzing Family Ties Burdens: A Framework
In two previous posts, Ethan, Jennifer Collins and I identified some practices that we characterize as family ties burdens. Here, we present a normative framework for analyzing whether such penalties or burdens can be justified. First, we quickly explain why we adopt a defendant-centered perspective in this project. Then, we revisit some of the costs of family ties benefits that we adumbrated and explored last year to see if any retain applicability in this new context of family ties burdens. Finally, we highlight the voluntary care-giving feature we see in the structure of family ties burdens, a feature which we think can serve as a guide for scrutinizing burdens more generally. Informed by this obscured but intelligible principle, we offer some thoughts on how to restructure family ties burden allocations within the criminal justice system.
A. Why a Defendant-Centered Perspective?
We must bear in mind that evaluating a policy from the defendant’s perspective is important because it is after all the defendant whose liberty the state seeks to place in peril. The conduct rules at the core of this Article are aimed at defendants – and it seems necessary to analyze those conduct rules on their own terms. After all, it is the defendants who are coerced; and the criminal justice system’s coercive nature is its most important feature demanding justification.
But we aren’t naïve. There is more to say on the matter. In characterizing family ties burdens, we have focused exclusively upon burdens imposed upon de-fendants and potential defendants, even though it is often the case that someone within the family – or “the family” as a social institution – could potentially be described as benefitting from the “burden.” In other words, what appears to be a penalty on familial status in an individual case could be imposed as part of a strat-egy to confer benefits to the social institution of the family as a whole. For in-stance, the recent criminalization of nonpayment of child support looks like a “family ties burden” in the sense we defined it earlier. That’s because, as a general matter, failure to pay debt is not a reason for criminal punishment. Indeed, other legal mechanisms exist to help debtors, most prominently, bankruptcy. But now, failure to pay child support, which is a form of debt, is a basis in many jurisdictions for criminal punishment. Thus, failures to meet some kinds of intra-familial financial obligations are now penalized much more harshly than the failure to meet other financial obligations. That definitely creates a burden on a defendant, at least as we defined it earlier. Indeed, in some cases, the burden imposed on the defendant is also a burden on those whom it is allegedly supposed to help. Thus, for example, a woman whose ex-spouse is jailed for failure to pay child support may object on the ground that this burden imposes a terrible tax on her family as well as on the defendant, in that it reduces the ability of her children’s father to play any kind of meaningful role in their lives. Thus, many of the practices we have described in Part I powerfully affect family interests beyond those of just the defendant.
Characterizing these practices as “burdens” might be further questioned if we alter the lens through which we are looking at the problem. The point of the recent criminalization efforts may be aimed at effecting the consilience of family life, in other words, keeping more families together by raising the costs of divorce. If this is the purpose, the policy of criminalizing non-payment of child support might provide a benefit to both the offender and the institution of the family overall
Indeed, the same frame might plausibly be applied to some of the other family ties burden we have discussed. Consider the prohibitions upon incest and the creation of liability based on omissions and vicarious liability. Even though all these practices impose a “penalty” on an offender on account of his familial status, these practices are arguably designed to facilitate a legal atmosphere conducive to the successful raising of children. Accordingly, throughout our inquiry into a particular burden, we will have to focus careful attention upon whether it can legitimately be conceived as such from a more general sociological standpoint. Although we feel justified in taking our “defendant-centered” approach to identifying burdens, when it comes to scrutinizing their ultimate justifications, some broader discussion of their sociological achievements will be necessary. Yet our plan in what is to come is not to analyze any particular family ties burden exhaustively; we will feel satisfied if we can help others think about them differ-ently, focusing on underappreciated costs and underanalyzed alternatives to their design.
These criminal liabilities or enhanced penalties might have different rationales too – aside from simply extending all-things-considered benefits to family life. First, the various burdens placed on offenders may reflect imperfect or indirect choices of decision-makers in the criminal justice system to enhance distinctive criminal justice goals such as deterrence or retribution. For example, having heightened penalties for certain incestuous relationships might be a way the state tries to compensate for the difficulty of getting incest victims to report their status as victims. Heightened penalties are a plausible way of achieving greater deterrence in certain contexts where there is less likelihood of a victim coming forward.
Alternatively, the state legislature may be using the criminal justice system to communicate to offenders the value that when one commits a crime against certain family members, one is even more worthy of reproach and condemnation. In this respect, the penalties might be thought to advance the criminal justice system’s educative, expressivist, or norm-projection purposes, by revealing society’s deep values: that attacks upon, or neglect of, one’s family members are worse than attacks upon, or neglect of, non-family members because of the additional breach of trust that a caregiver signals when opting into a relationship of care-giving. If heightened penalties attach in the context of crimes against victims with whom one has opted-into a relationship of care-giving, then increased penalties might be justifiable because the offense (or omission) with respect to that particular victim is worse: when you hurt or fail to protect someone whom you’ve already signaled to society that you will care for, then one might plausibly say there is an extra wrong (a breach of an implicit or explicit promise) that has been committed. Or, as we suggest below, you’ve committed a different wrong, by lulling others into a false sense of security from which they fail to help the person in question.
A distinct but related idea is that these apparent penalties serve other legitimate social goals of the state that have little to do with deterrence or retribution or even the vitality of family life. On this view, it might be that penalties imposed on the basis of familial connections to the crime stand to serve other purposes that, in fact, directly benefit the state. For instance, the legislature might believe that imposing impediments to even consensual incest between adult siblings is important for reducing the prospects of increased social expenditures on food stamps and medical care, because they assume that incestuous relationships will be procreative of offspring who are more likely to require subsidized medical support. Again, here, we will have to weigh very carefully these purported benefits in any one instance: if they serve compelling interests, perhaps discrimination on the basis of family status is justifiable. But these compelling interests cannot be assessed in the abstract and must be pursued in the specific context of each burden, an analysis we undertake in the next Part.
Here we simply wish to reiterate that we don’t deny that one could reframe the inquiry to reflect how the criminal justice system seeks to promote “family values.” But in light of the fact that our work last year looked at the benefits the criminal justice system extends to defendants based on family status, we don’t think there is something inherently biased when we look at the burdens placed on family ties here. Thus, to our minds, the inquiry at the core of this article is an essential one, and we can learn something important by asking three questions: what goals are we trying to advance when we impose a family ties burden on an individual for the conduct in question; second, does the sanction create benefits that can be more fairly distributed; third, does the sanction trigger unjust consequences that could be ameliorated through more careful drafting or revision?
B. Revisiting the Costs of Family Ties Benefits
Given the various benefits and privileges afforded on account of family ties with which we concerned ourselves last year, it might be thought that the burdens more generally help to balance out this discriminatory treatment pervasive within the criminal justice system. There is undoubtedly some force to the intuition that benefits and burdens might help balance each other out, or that both might serve a similar “protective” function. But this analysis cannot be generalized too quickly. Consider: how do sentencing discounts for those with family ties and responsibili-ties (a benefit we examined in our framework last year) rest consistently with criminalizing those engaged in non-payment of child support or adultery or po-lygamy? The former is protective of family care-giving functions from a defen-dant’s perspective once he’s been accused while the others can be deemed “pro-tective” of such functions only from an ex ante perspective—before someone knows he’s going to commit that crime, because once the conduct in question has occurred, the care-giving potential of the defendant is impaired. Viewed together, these benefits and burdens are in tension. Moreover, since legislatures and scholars have not looked at these benefits and burdens systematically as designed to be off-setting, critical and independent analysis is warranted.
When we took to analyzing family ties benefits previously, we scrutinized the plausible justifications for getting the state to help the family. As before, it is critical to appreciate how the family both molds the individual and reduces the states’ burdens. Indeed, without repeating our views unnecessarily, we recognize that the institution of the family helps create and fashion our individual identities, our “historical,” “constitutive” or “situated” selves that simply and utterly depend heavily on our families and our familial associations for survival and sus-tenance.
Moreover, since the state either cannot or will not live in accordance with what Plato’s Republic idealizes for the Guardian class – no private families with all children being held in common – the state needs to keep families together and solvent. The state can draw from the rich panoply of resources naturally furnished and expended by the family in creating good citizens. By giving families special support, the state can economize on expenditures that it would otherwise be forced to bear in educating its citizenry and preparing its members to contribute to the stability and flourishing of the regime.
This is a crude way of thinking about the matter, to be sure. But it is one that must have a grain of truth: the state simply cannot afford to provide all the services families routinely provide relatively efficiently and effectively, so it “subcontracts” such work to the family – and “pays” it accordingly. Families will not be able to provide care services completely for free – and can rightfully demand that the state (which is parasitically living off of its successes) subsidize the hard work of helping children “take their place as responsible, self-governing members of society.” The state helps itself when it subcontracts cheaply the “formative project of fostering the capacities for democratic and personal self-government” – and leaves it in generally reliable hands. Despite the recognition the family’s care-giving role properly warrants, and the risk states incur of irrelevance and illegitimacy when they fail to treat persons as constituted selves, we ultimately concluded that general arguments rooted in communitarian political theory were insufficient to underwrite special treatment of the family in the criminal justice system. In particular we noted how these benefits on account of familial status cause risks of inequality, gender bias, inaccuracy, and more crime. Consequently, we expressed hesitation and skepticism toward the benefits distributed on the basis of family status throughout the criminal justice system. It is, after all, a most basic liberal principle that punishment be meted fairly and accurately, without fear or favor for those of different status.
These reasons for our skepticism toward the distribution of family ties benefits inform our approach to thinking about family ties burdens. Specifically, we must address whether and to what degree the normative considerations we identified earlier in connection with families ties benefits – patriarchal domination and gender bias, inaccuracy, inequality, and crime-creation – apply in the context of family ties burdens.
It is easy to see relatively quickly that two of these considerations – crime-creation and inaccuracy – are mostly inapplicable in the context of family ties burdens. In other words, unlike family ties benefits, family ties burdens rarely trigger concerns that they will create more misconduct or impede the accurate prosecution of the guilty and the exoneration of the innocent. Although it may be possible that these two costs will be implicated by a hypothetical burden which we haven’t identified here, we do not see them as generally applicable in the case of burdens and do not think it would be appropriate to criticize family ties burdens along these dimensions, as was justified generally in the case of family ties benefits.
But two of the normative considerations that we identified earlier do seem generally relevant when analyzing family ties burdens: inequality (and its relationship to morally arbitrary discrimination) and gender bias. Notice that although inequality and gendered effects of a neutrally-drawn criminal justice regu-lation would not come within the ambit of our discussion – for family ties burdens as we define them must facially discriminate against family status – they are normatively relevant effects in judging the viability of any particular burden. So even though omissions liability, bigamy, and nonpayment of child support law are, for example, written in gender neutral terms, once they are identified as facially discriminatory against family members, it’s appropriate to ask whether they have effects that reinforce gender stereotypes.
1. Inequality and Discrimination
In many contexts, burdens risk treating similar conduct unequally – and affirmative discrimination against the family is hard to justify. For example, incest prohibitions affecting consensual sexual relations among adults restrict liberties that would otherwise be unregulated and generally protected. Non-payment of a debt becomes a criminal offense in one context (child support) while it remains a civil action in most others (e.g., bankruptcy). Although it is obvious through the exaction of burdens that we are often seeking to have family members take special precautionary measures to protect vulnerable potential victims, the tool of punishing on the basis of familial status alone is surely worth scrutinizing more carefully, since it does implicate norms of equality and nondiscrimination that a liberal criminal justice system should embrace.
Indeed, as a general matter – and in ways we will expand upon presently -- we tend to think that targeting familial status is an overinclusive and underinclusive approach to achieving sound policy objectives. It may make sense for the criminal justice system to try to protect our most vulnerable members of society; but many types of citizens are vulnerable and targeting the family is not a rational or remotely narrowly tailored means to achieving that objective. Nothing about estranged family members, for example, necessarily renders them especially vulnerable to one another to justify the imposition of special burdens upon offenders and potential offenders. Thus, family ties burdens could be overbroad if they penalized, say, estranged siblings with omissions or vicarious liability. By contrast, many vulnerable citizens warrant protections that the criminal law currently and irrationally renders unavailable, such as the families of same-sex couples; thus family ties burdens that don’t protect people who would agree to such protection and such burdens ex ante, should be reconfigured to promote the underlying value of voluntary care-giving relationships.
2. Gender Bias
Imposing a burden or penalty on an individual in the criminal justice system solely on the basis of family ties enmeshes the state in an expressly normative dispute over who counts as family and who does not. And the position the state takes is one that is not merely conventional: it also threatens to promote a discriminatory and gendered set of policies. Thus, as alluded to above, in the context of family ties burdens, large numbers of persons who might (justifiably, in our view) see themselves as entitled to benefit from the imposition of family burdens (and family ties benefits, of course) are excluded. When the state makes choices regarding families, it risks marginalizing persons who consider themselves family members but are not recognized as such by the state. In this sense, use of the family as traditionally delineated is an under-inclusive (and at times, over-inclusive) mechanism to distribute the tangible and expressive benefits conferred by the criminal law when it targets persons with unusual treatment on account of familial status.
More, in certain circumstances, family ties burdens are used in ways that reinforce gender stereotypes. Although routinely drafted in gender-neutral terms, many family ties burdens raise substantial questions about policing gender relations more broadly – and once a burden is identified, it seems to be fair game to analyze whether the burden is contributing to gender bias more systematically. We think that omissions liability, bigamy, and nonpayment of child support all show this pattern.
C. Uncovering a Structure of Family Ties Burdens: Voluntary Care-giving
Many of the family ties burdens we find in the law – omissions liability, vicarious liability, bigamy, adultery, non-payment of child support – reflect a pat-tern that, to our mind, hasn’t been sufficiently emphasized. This pattern suggests an internal structure critical to rethinking family ties burdens in our criminal justice system. Specifically, most burdens that exist occur in the context of relationships that have a voluntary or “opt-in” nature, meaning that the individual who faces the burden imposed by the criminal justice system has consensually entered into the relationship that serves as the basis of potential subsequent liability for doing or forbearing from actions that would otherwise be lawful. Some applications of incest prohibitions break out of this pattern, to be sure. But if you were to look at the dominant practices with respect to family ties burdens, they are imposed on defendants in two kinds of relationships: spouse to spouse and parent to child.
Though we don’t see this pattern as itself authoritative, we do think it can be justified and illuminating in various ways. First, when family ties burdens are limited to relationships reflecting this voluntary nature, we find the imposition of these burdens more attractive. The voluntary nature at the heart of these obligations takes at least some of the bite out of the charge of discrimination: if parties freely choose relationships that themselves trigger liability after fair notice, liability on the basis of family status seems more defensible, at least up to a point. That’s because there’s a basic trade-off going on: if you want to take advantage of the ways in which society privileges building family relationships through institutions of distributive justice (say, through tax credits), then you need to be aware that society is placing greater burdens on you to ensure you assume your care-giving responsibilities. By contrast, extending family ties benefits only to those who have opted in to relationships of care-giving seems to discriminate more against those who are deprived of the opportunity to develop those relationships of care-giving. In other words, not everyone can choose (or wants to choose) to marry or procreate—and those who do not make this value-neutral choice should generally not be treated disfavorably by the criminal justice system.
To be sure, voluntary relations can be fuzzy at the margins: Have we really chosen our in-laws even if they have not chosen us? Have we always really chosen to have children, when a pregnancy is the result of failed birth control methods? Still, we think the relatively easy cases of spouse and parent-child help expose an important insight about appropriate burden distribution: that they generally seem more palatable in the context of voluntary relationships of care-giving.
Why should voluntariness matter? For one thing, restricting the imposition of family ties burdens to those who choose to bear them is a way of respecting one’s autonomy; if we forced all sorts of obligations on family members who didn’t choose to enter a relationship of care with someone, we’d be impinging on their reasonable liberty interests.
Additionally, the special obligations some family ties burdens impose can be understood in terms of signaling theory. On this view, family ties burdens are appropriately imposed on someone who has voluntarily entered into and maintained a relationship because by their consent to that relationship they are signaling to others that they are going to be “first responders;” society can then trust them to look after the people with whom they have created a covenant of care-giving. The germ of this idea appears in omissions liability/duty to rescue law.
Generally, in the absence of a contractual basis, one doesn’t labor under a duty to rescue other people. But there are widely acknowledged limits to this no-duty principle. For instance, if Alice is walking by the beach and sees Charlie drowning, and then waves off Bob, who was also on his way to rescue Charlie, Alice is now under a special obligation to go rescue Charlie. She can’t just walk away at that point absent special justification (like a new threat to her life). The actions of marrying or parenting can be interpreted to be creating similar statements about responsibility. When a person enters into a covenant of care in the form of marriage or parenting, she is telling society that she will be a “first responder” to the person with whom she’s covenanting when that person is in danger.
It follows, we believe, that if voluntariness matters, then a “family ties burden” should not be placed on someone who has had a familial status imposed upon him. Consider siblings. Almost no child freely chooses whether or not to have a sibling; that decision is generally left up to his parents. Unsurprisingly, the law ordinarily does not impose special obligations upon an individual to take or face risks on a sibling’s behalf. Other family relations fall into the same category; almost no one freely chooses whether or not to have an aunt, uncle or cousin – and when people do take on an unrelated aunt or uncle, the law generally ignores that status.
By this logic, it seems clear that some family relationships are involuntary in the sense that they were not deliberately entered into by the relevant parties. The more difficult question is whether there are family relationships that are in fact truly voluntary. At first blush, the most obvious example of a voluntary relationship would seem to be that of spouses – it is certainly true for most cultures in this country that no one is forced to marry, and individuals may freely choose their own partner. To be sure, some human trafficking victims are coerced into marriage, but that is an instance of legal wrongdoing, not an instantiation of what we think to be marriage’s nature. Thus, although some have argued that social and economic forces render marriage compulsory, we think such conclusions are generally unpersuasive. Certainly, there is strong social and economic pressure to marry; but this doesn’t vitiate the kind of voluntariness that can render people’s decisions their own for the purposes of being responsible to take on burdens and benefits. Current government policies and social norms undoubtedly reward an individual’s decision to marry, but these rewards nonetheless stop far short of compelling an individual to do so. By the same token, some government policies and social norms also prevent an individual from marrying a person of his or her choice, and that, to our mind, is an undue intrusion of the state, since it denies opportunities and expressive benefits on grounds we find morally irrelevant.
As to the parent-child relationship, we see this relationship as generally a voluntary one (whatever pressures exist to reproduce). A mother who does not wish to parent is legally free to use very reliable birth control methods – and she may terminate her pregnancy or place a child up for adoption. To be sure, there are complications with this general observation: Most obviously, fathers have long been held by courts to be forced to parent against their will in the sense that they are subject to child support obligations even if they take affirmative steps to avoid fatherhood. Still, for the most part, these complications are indicative of the exceptions, not the general case. Most parents want and choose their children. This is not to say that the laws that attach to parents as family ties burdens are always justified. Rather, the fact that these relationships are usually voluntary helps us understand the underlying structure of burden allocation by the criminal justice system.
D. Overcoming Family Status through a Focus on Voluntary Care-Giving
Notwithstanding the ambiguities that might attach in particular situations regarding whether a familial relationship is voluntary, using voluntariness, rather than familial status, as a basis for distributing these kinds of obligations is initially quite attractive. Indeed, using voluntariness as a criterion helps us solve the under- and over-inclusive problem that family status alone triggers. Importantly, it allows us to encompass those who view themselves as obligated to others through their own actions regardless of the delineations of an “acceptable” family established by the state. Thus, same-sex partners, unmarried heterosexual partners, grandparents caring for extended family members, even platonic or polyamorous friends living together in a committed care-giving relationship—all of these people are engaged in voluntary relationships who may both want and deserve the protections and expressive benefits of burdens solely allocated on the basis of family ties in our current policy environment.
But is voluntariness alone sufficient? How do we go about limiting the ex-tension of such burdens that the state is expected to prosecute with its criminal justice resources? Can a child choose his third closest friend from kindergarten as the person to whom he owes a special obligation of protection? If she does, should scarce criminal justice resources be used for these purposes? We need answers, in other words, for both who decides and by what criteria that a particular relationship should be deemed a voluntary relationship in which the party is willing to assume obligations toward another. Moreover, we also need answers to whether an obligation can be imposed even in the absence of a voluntary relationship.
In our view, voluntariness as a stand-alone criterion is insufficient for as-sessing whether it is just and attractive to impose or enhance criminal penalties on the basis of a relationship. We suggest that voluntariness be used in conjunction with whether the relationship exhibits a relationship of care-giving. Our sense is that many sorts of people assume these care-giving roles and not all of them are familial in nature. Roommates, for example, might choose to adopt an ethos of mutual care over a period of time. If that relationship is freely entered into and maintained, we don’t see why they shouldn’t be able to enter into the compacts of care that characterize spousal or parental relationships. Thus, if we are going to be recognizing care-giving responsibilities they should not be restricted to ones that are familial.
That said, we do think one’s familial status qua spouse or parent to a child may be presumptively used to establish that the relationship involves voluntarism and care-giving. After all, one almost always chooses their spouses and having children is also a choice, generally speaking. The presumption in other relationships would not attach but the connection of care-giving could be established by other evidence. In the end, then, familial status as such would be neither necessary nor sufficient to justify a “family ties burden.” For, in our scheme, even a parent might be able to rebut assignments of family ties burdens when the child lives far away with grandparents or with one parent and a step-parent.
That raises the question of whether voluntary assumptions of responsibility can ever be terminated. Imagine that after years of enduring abuse, one has lost all affection for one’s spouse. Still, the law still places a burden of omissions liability on the reluctant spouse. What is to be done? Or imagine giving up one’s biological child to a friend across the country because money is tight. Should the biological parent be punished on account of family status under vicarious liability laws?
In the context of married couples, divorce would be the appropriate way to signal an opting-out of the special duties of marriage. And in the context of the parent giving up his or her child to friends across the country, termination of pa-rental rights is the way to opt out of the special duties of parenthood. But it isn’t obvious to us that these potentially costly signaling mechanisms should be the only ways to break the covenants that trigger the special responsibilities of voluntary care-giving. Although for the average dyad (whether parent-child or spouse-spouse), the legal opt-out might not be unduly burdensome, there certainly will be cases when it seems very unfair to require divorce or termination; perhaps in ex-ceptional circumstances parties to these special relationships ought to be able to show that they should be deemed “equitably” divorced or terminated for the pur-poses of the family ties burdens. One way to determine the bona fides of these parties is to see whether they have tried to capture family ties benefits through either the criminal or the civil system (say by claiming a dependent for tax purposes); in such situations, we can envision the very rare case when parties should be saved the pain and cost of an official divorce and termination.
Spousal relationships, however, should not be treated the same as parents’ obligations toward their children. After all, minor children cannot avoid their own vulnerability. Thus, although letting spouses opt out in their adulthood doesn’t generally offend a sense of fair play, letting parents ditch their vulnerable children without their consent (for minors can’t always consent) quite centrally violates the most basic tenets of what many think parents owe their children. But that is just another way of specifying why allowing parental opt out without termination should be even rarer than allowing spousal opt-out without divorce. Nevertheless, just because it should be rare doesn’t mean it must be categorically proscribed. Indeed, if we are right that voluntary care-giving underwrites and furnishes justificatory principles for status-based burdens in the criminal justice system, we should seek ways to narrowly tailor the family ties burdens to capture only the right kinds of offenders. If we had to give up our children to good friends for several years because of illness or incapacitation, for example, it would seem sensible, at least to some, to enable one to opt-out of certain special parental duties short of terminating one’s parental rights. But all things considered, that should be a high bar to surmount; the obligation to raise a child should not be blithely compared to joining a bridge league.
For most other relationships outside of child-rearing, however, we think a registry could be created in which people opt-in and opt-out of relationships of care-giving so long as they provide notice to and secure consent from the affected parties. This strategy would allow adults to select a discrete number of additional persons eligible for receiving the adult’s responsibility. If unrelated roommates wanted to sign up they could do so, signaling commitments of care for each other, to each other, and to those around them.
To be sure, there is something cheaply administrable when the law selects simply a few family status relationships instead of having to create a registry for relationships of voluntary care-giving. But it does not seem that much more difficult to use a registry of the sort we describe, especially when it lends promise to the prospect of all sorts of people pledging their hearts and sense of obligation to others around them. Moreover, as alluded to above, the administrability of this system can be rather cheaply achieved by requiring that spouses and children occupy a special role with respect to family ties burdens—i.e., certain duties can be imposed on parents and spouses to ensure they meet the responsibilities they agreed to when they volunteer to be a spouse or parent. Our registry network, in other words, would supplement the core relationships of spousal and parental obligation, not supplant it.
In short, adopting a quasi-voluntarist approach to burden distribution in the criminal justice system harmonizes well with what we think the system appears to seek for itself, albeit imperfectly. Moreover, it might provide for a better intellectual fit with the competing interests in promoting freedom and autonomy, which is thought by many to undergird the no-duty-to-rescue pattern of law. Additionally, the difficulties associated with the under and over-inclusive nature of family status can be remedied in large measure by use of a registry where one can declare who counts within one’s sphere of accepted responsibility for the purpose of some of the crimes discussed here. This would strengthen voluntary assumptions of care-giving responsibilities (of which the family is sometimes a great example) rather than rely upon inflexible categories based upon antiquarian notions of status.
E. Bringing It Together: How To Scrutinize a Family Ties Burden
In light of all these various considerations, we propose that family ties burdens – whether the ones we described in Part I or some others that might be contemplated – undergo scrutiny, using a set of normative speed-bumps designed to track our discussion here. Our general approach in light of the foregoing is that special criminal justice burdens based on familial status alone require extra justification. Perhaps unsurprisingly, just as we exhibited a tendency to be skeptical toward particular benefits afforded to the family in the criminal justice system in our Article last year, we are also inclined to protect individuals from penalties or burdens based simply on familial status. However, because we are sensitive to the care-giving contributions that might stand in need of special protection from the state, we believe that many of the concerns people might have about abandoning family ties burdens can be addressed instead through careful drafting that substitutes attentiveness to voluntary relationships of care-giving in the place of familial status alone. In the context of family ties benefits, we were more skeptical to them be-cause of the costs they imposed on the criminal justice system, even if they were re-drafted in a way that was somewhat neutral to family status. Re-drafting along family-neutral grounds was, for us, a decidedly second-best alternative in those cases where the criminal justice system’s commitments to equality and accuracy were impeded. But in the context of burdens, as we will see, most of these costs are either not triggered or, if they are, they are substantially ameliorated when drafted along terms that respect voluntary care-giving rather than family status alone.
Thus our skepticism toward family ties burdens does not entail eliminating all such burdens. Instead, we propose that such burdens undergo a set of searching inquiries.
First, we propose that those seeking to impose a burden on someone in the criminal justice system on account of that person’s familial status should ask: to what extent does the family ties burden in question trigger concerns about gender bias or inequality and arbitrary discrimination — the normative costs of family ties benefits that retain applicability in the family ties burden context? (If there are concerns about accuracy or crime-creation, then those too should also be weighed. ) But if the burden was not imposed only on individuals based on their family status, it is not a family ties burden in the sense we mean, even if the policy ends up substantially hurting those with families.
Second, assuming the burden implicates one or more of these concerns, to what extent does the penalty or liability vindicate a compelling state interest that justifies the use of the burden in the criminal justice system? In other words, given the disruption the burden promises to wreak on other values (like, say, nondiscrimination, autonomy, liberty, and equality), what are the countervailing benefits promised by its imposition?
Finally, and most critically important, we must ask whether there are other less troubling means — means that can be crafted in terms that are neutral (or more neutral) to family status — available to protect the interest underlying the burden? In situations where the case in favor of the family ties burden appears to make sense, we argue that the family ties burden should not be imposed on the basis of traditional familial status, but rather on the basis of care-giving relationships of autonomous choice. Thus, burdens that are imposed on spouses or parents for the crimes of their spouses or children may be permissible, but burdens placed on individuals on account of crimes committed by their siblings (absent special circumstances or voluntary acquiescence) would be inappropriate. This will undoubtedly leave some questions open at the margin – but we can live with some indeterminacy, especially once we announce a more specialized focus on voluntary relationships of care-giving.
This kind of scrutiny will not, to be sure, resolve all questions; inevitably disputes about the strength of competing claims will persist. But, as we hope we achieved last year in our systematic inquiry into family ties benefits, we hope to do some important work in helping clarify the problems under consideration and alerting lawyers, policymakers, and judges to some of the potentially hidden costs of family ties burdens in the criminal justice system.
Monday, March 10, 2008
Punishing Family Status: More Examples
During the previous two weeks, I alluded to an article by Ethan, Jennifer Collins, and myself, entitled Punishing Family Status. Here's the abstract, the introduction, and the first half of Part I, where we talked about vicarious and omissions liability and incest. Below we discuss some of the other sites where the criminal justice system discriminates against defendants based on their family status --that is, places burdens on defendants that would not otherwise exist in the absence of a particular family status: bigamy, adultery and failure to pay child support. Please note that we have removed the formatting and footnotes in the excerpt below.
Marlyne Hammon knows what it’s like to feel hated and hunted. In 1953, when she was an infant, her father—along with dozens of other men in her tiny community of Short Creek, Ariz. — was arrested and sent to jail on charges of polygamy. She, her mother and siblings were forcibly exiled from the community and sent to live with a family in a nearby city. Her father was released after a week, but because the family feared further prosecution, they lived apart and corresponded in secret for the next six years. “Our community had this idea that we should live our lives quietly to avoid trouble,” she says. “We were taught not to make a big ruckus.”
Not anymore. Hammon, who’s involved in a polygamous relationship, is a founding member of the Centennial Park Action Committee, a group that lobbies for decriminalization of the practice. She’s among a new wave of polygamy activists emerging in the wake of the gay-marriage movement—just as a federal lawsuit challenging anti-polygamy laws makes its way through the courts and a new show about polygamy debuts on HBO. “Polygamy rights is the next civil-rights battle,” says Mark Henkel, who, as founder of the Christian evangelical polygamy organization TruthBearer.org, is at the forefront of the movement. His argument: if Heather can have two mommies, she should also be able to have two mommies and a daddy. Henkel and Hammon have been joined by other activist groups like Principle Voices, a Utah-based group run by wives from polygamous marriages. Activists point to Canada, where, in January, a report commissioned by the Justice Department recommended decriminalizing polygamy.
Although there is some variation around the edges of incest prohibitions, no such ambivalence exists regarding criminal laws prohibiting polygamy. These bigamy laws are universal around the country. Yet, these prohibitions raise substantial questions about the proper scope of the criminal law and its relationship to issues of family status.
Bigamy laws in the United States, broadly stated, prohibit an individual from entering into multiple and simultaneous marriages, when the first spouse is still alive and that initial marriage relationship has not been terminated. The rationales for prohibiting polygamy are familiar and, in America, deeply rooted. They are nonetheless under-scrutinized.
As a recent study of polygamy avers, many “[p]opular depictions of polygamists in the media and in society generally focus on the prevalence of underage brides, accounts of sexual abuse, and the subservient role of women in these relationships.” Indeed, historically, polygamy has been decried as a tool to subordinate women. But the same has been said many times about marriage itself and the legal institutions accompanying it. If anti-subordination is the goal, then a critical empirical question is whether plural marriage prohibitions in fact achieve marginal harm reduction. In light of the fact that many prominent feminists have over the years argued for decriminalizing bigamy, including active support by Susan B. Anthony and Elizabeth Cady Stanton, we should evaluate more carefully blanket claims made in the absence of hard empirical evidence.
Moreover, as the critics of bigamy note, the presence of abuse or coercion, while important to acknowledge and address, is something that can be independently punished through the use of other criminal laws. It also seems necessary to develop empirical evidence about whether abuse or coercion is in fact more prevalent in the plural marriage context than the single marriage context. Indeed, perhaps because of the marginalization of polygamous practices, polygamy supporters argue that it is harder for victims or allies of victims to report abuse because it might lead to bad consequences for the victim. Of course, this same dynamic is a concern even in monogamous relationships; but unlike monogamous relationships, the victims of abuse in polygamous relationships might face serious collateral consequences from the state, such as the termination of parental rights. Despite the appeal of some of these recent arguments in favor of legalizing polygamy, opposition to the practice continues to be deep-rooted in American society: as of 2004, 92% of Americans still viewed polygamy as immoral.
“John R. Bushey Jr. was finally brought to justice in a small courthouse in Luray, Va. Bushey, the former town attorney, stood before the court as an accused criminal with reporters from all over the state in attendance. The charge was adultery. Like 23 other states, Virginia still might prosecute if a husband or wife has consensual sex outside the marriage. Ten states, including Virginia, have anti-fornication statutes as well, prohibiting sex before marriage.” Bushey was prosecuted because his spurned lover went to the police to complain when the affair ended. He eventually pled guilty and was sentenced to twenty hours of community service.
Adultery laws, at least as crafted in some jurisdictions without fornication statutes, prohibit a married individual from engaging in extramarital sex, notwithstanding that such sexual relations would not otherwise be subjected to legal sanction. Perhaps because of the pervasiveness of adultery, a bare majority of states have gotten out of the business of regulating extramarital relations, even though large majorities of Americans continue to view adultery as immoral. Regardless of the cause of adultery’s relative demise as a crime, we recognize that most jurisdictions do not actively prosecute or punish this misconduct anymore, even though 23 states and the District of Columbia still have statutes criminalizing this conduct Nevertheless, some states have recently self-consciously refused to abandon their adultery laws: Maryland even tried to expand its adultery statute to “modernize” it, attempting to criminalize extra-marital affairs with same-sex partners.
Although one might be tempted to dismiss the significance of adultery laws today, we are loathe to do so in light of continued enforcement of such laws in some jurisdictions, especially in the military. Indeed, although civilian courts have generally seen a decrease in adultery prosecutions, there is a veritable explosion of such prosecution in military courts, often traced to the integration of women into the armed forces in the late 1970s. And during the Clinton-Lewinsky scandal, many members of the armed forces were especially critical of their commander-in-chief, who undoubtedly would have faced a court-martial on adultery-related charges if he had been a mere service member.
Moreover, there is an odd discrimination resulting from adultery laws against heterosexuals, which we think needs some articulation and evaluation. It goes without saying that as applied to the defendant who is married, adultery laws are a clear and conventional family ties burden. Whether these burdens can be persistently justified in the criminal justice system is an issue we hope to address in what follows.
F. Nonpayment of Child Support
In 1997, an Anchorage, Alaska father was sentenced to serve five days in prison and spend five years on probation for failing to pay almost $98,000 in child support. A government official stated that “Our job is to collect money for children. Parents need to realize there are penalties for ignoring their children.”
Ordinarily, the failure to pay a debt to a non-governmental entity (like your local utilities provider) is not a criminal act; an aggrieved party is forced to pursue civil remedies to obtain redress. In contrast, failure to pay child support is a crime. For example, the Child Support Recovery Act (amended in 1998 as the Deadbeat Parents Punishment Act) makes it a federal crime to owe more than $5000 in child support or to be in arrears for longer than one year if the child owed the support lives in another state than the delinquent parent. In addition, many states have statutes criminalizing a parent’s failure to pay child support. This is yet another way family status can turn a non-criminal act into a criminal one.
Critics of efforts to punish “deadbeat” parents charge that many parents fail to pay because of poverty, and not because of willful indifference to their children’s needs. Further, incarcerating these parents obviously severely restricts, if it does not eliminate altogether, these parents’ ability to pay any support and, more importantly, to have a meaningful relationship with their children. Indeed, placing so much emphasis on parents’ economic contributions has the potential to devalue the non-economic contributions that parents make to their children, such as disciplining and nurturing them. This is amplified given the reality that it is by and large men who are jailed for failure to pay child support, reinforcing a view of the father as meeting his parental obligations (and discharging them completely) through financial contributions.
What could be the justification for incarceration in the child support context? Perhaps child support debts are different in kind than other debts and failure to pay is therefore more reprehensible; it should be viewed as the equivalent of “stealing from your kids.” As Professor Oman has written, “the law insists that the failure to support one’s children is an act of particular blameworthiness that we are willing to accept extra costs to avert and that we are willing to punish with greater severity than other kinds of non-payment of debt.” Or, perhaps, these laws can be vindicated as a form of the “omissions liability” statutes we’ve considered above: parents have a non-waivable duty to protect and support, which is parallel to the duty to protect and rescue in the omissions liability context.
The Ninth Circuit emphasized these kinds of rationales in finding the Child Support Recovery Act constitutional. The Court emphasized that a child support debt is fundamentally different than other debts: “We note that the obligation in question is not an ordinary debt; it is an award imposed by a state court to ensure the sustenance and well-being of the obligor’s children.” The Court then added:
We start with the self-evident observation that the relationship between parent and child is much more than the ordinary relationship between debtor and creditor. The parent is responsible for bringing the child into the world and in so doing assumes a moral obligation to provide the child with the necessities of life, and to ensure the child’s welfare until it is emancipated and able to provide for itself. When parents neglect their children, this raises more than a private legal dispute. It is a matter of vital importance to the community, and every state now enforces, by means of criminal sanctions, the parent’s obligation to support children within his custody.
Another way to understand stiff penalties for non-payment of child support is through the utilitarian lens of norm projection and general deterrence. Thus, even if putting one caring parent in prison hurts the relationship between that parent and his or her particular children, the credible threat of stiff penalties might serve to educate the public about the seriousness with which society views parental obligations to children as well as encourage those parents who might otherwise shirk those obligations to fulfill them.
Friday, February 29, 2008
Punishing Family Status: Some Examples (Part I)
Yesterday, I posted the introduction to a working draft of a paper, Punishing Family Status, by Ethan, Jennifer Collins and myself. Today we provide the first half of an overview of places within the criminal justice system where defendants are burdened in some way on account of their family status. I should note that what's below is not intended to be comprehensive; for instance, we have very recently come across some statutes that make it a crime for persons to not support their parents--filial responsibility statutes. We don't discuss these statutes in the paper below, but we plan on discussing them more in our book version of the project. Of course, if you have any thoughts about other criminal laws that should fit into our analysis described below, please let us know via email. Please excuse any formatting errors that might arise in the reproduction here--and note that we have omitted our footnotes here.
I. AN OVERVIEW OF FAMILY STATUS AND CRIMINAL JUSTICE BURDENS
Certain crimes permit prosecution of a defendant for conduct that would not otherwise be unlawful in the absence of a defendant’s familial connection to the crime. Examples include certain vicarious and omissions liability statutes, incest, bigamy, adultery and nonpayment of child support. Thus, to illustrate, incest statutes proscribe sexual conduct even between mature, consenting individuals, and other statutes impose criminal liability for the nonpayment of child support, even though we do not ordinarily criminalize a failure to satisfy a debt. In all of these examples, the familial status alters the blameworthiness the criminal justice system assigns to the underlying conduct. We examine these kinds of crimes in turn. Although these examples are not necessarily exhaustive, we believe they are the most frequently found examples of the criminal justice system’s decision to criminalize certain conduct on the basis of family status.
A. Omissions Liability
In June 2002, a 21 year-old mother named Shavon Greene was charged with aggravated manslaughter after her boyfriend allegedly beat her 21 month-old daughter to death. The prosecutor did not allege that Greene was even present during the beating; instead, she was charged because she had disregarded warnings from a social services investigator not to leave the child alone with her boyfriend. Greene eventually pled guilty to culpable negligence in the child’s death.
exceptions to the general rule are well-known, though the prospect of criminal
law enforcement of an exceptional duty to rescue is much more unusual than tort
law enforcement. As the D.C. Circuit stated in Jones v. United States:
There are at least four situations in which the failure to act may constitute breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntary assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
It is the second category that is of special interest here, for the status of husband to wife and parent to child are paradigmatic, even if not exclusive, examples of status relationships in which one owes a duty to rescue sufficient to trigger criminal responsibility (rather than mere tort liability). Accordingly, parents are regularly held criminally liable for neglect for failing to protect a child who was being sexually abused by another individual, and held criminally liable for manslaughter for failing to protect a child from fatal physical abuse inflicted by another. These prosecutions exemplify the family ties burden phenomenon by which persons in certain family relationships are held accountable for harms to others even when those harms are inflicted by another independent actor.
Not surprisingly, such prosecutions have been hotly debated by the legal academy. Some of the debate has revolved around whether the passive parent should be entitled to argue that her status as a battered person herself should excuse her failure to act. Perhaps the most highly publicized case in this regard involved Lisa Steinberg, who was beaten to death by her father while her mother, Hedda Nussbaum, allegedly did nothing to prevent the abuse. After Nussbaum established that she too had suffered serious physical abuse at the hands of Joel Steinberg, the prosecutor’s office elected to drop charges initially filed against her.
What are the problems with failure to prevent abuse prosecutions? First, critics charge that such prosecutions disproportionately target women. Indeed, women are more likely to bear the brunt of such prosecutions than men simply by virtue of the fact they are more often the custodial parent. Further, women are typically held to a higher standard of care in childrearing relative to men. As Naomi Cahn and Marie Ashe have argued, “Cultural middle-class norms expect all women to be primarily responsible for their children. The criminal justice system supports this norm by criminalizing the abusive and neglectful behavior of parents, penalizing mothers particularly harshly.” But supporters of prosecutions of passive parents counter that even a parent’s status as a victim of domestic violence cannot categorically excuse her failure to act to prevent the abuse of her child. For example, Mary Becker has suggested that “mothers, even when abused themselves, should be held to a high standard of care for their children and should normally be held responsible for their own abuse or neglect of their children and for failing to protect their children from others’ abuse and neglect, provided that they knew or had reason to know of the harm to their children.” That’s because even though the mother may have been weakened physically or mentally by virtue of the abuse she has suffered, unless she is “literally a hostage,” she still has options to employ in an attempt to protect her child that are not available to the child itself; young children, after all, are utterly defenseless and completely dependent upon adults for their protection.
B. Vicarious Liability
In the civil justice system (rather than in criminal justice), courts will sometimes hold a defendant (like an employer) liable for compensatory damages to an injured party even if the employer is not personally at fault for his employee’s misconduct. It’s often thought that such vicarious liability can be justified because if an innocent enterprise is made to recompense the victim, the enterprise can more easily absorb the cost of the tort and pass on the cost to consumers, which has the effect of minimizing burdens on any single tort victim. This rationale for vicarious liability erodes, however, when the liability leads to a criminal penalty against an individual rather than a civil payment for compensatory damages. After all, in the context of fines, the victim is not being paid; rather the state is. And the defendant is not being forced to merely pay for harm; the defendant is being condemned through punishment for wrongdoing that someone else committed even if the defendant was unaware of and did not participate in the wrongdoing and even if the defendant instructed the wrongdoer that such misconduct was forbidden.
Despite this disjunction between rationale and scope, jurisdictions regularly impose vicarious criminal liability. We sometimes see vicarious criminal liability in the context of public welfare offenses to ensure public health and safety. We also see vicarious liability in the context of the crime of conspiracy; co-conspirators have been held liable for substantive crimes committed by another member of the conspiracy, through the Pinkerton doctrine, even if not present at the scene of that crime or aware of the crime’s commission. These efforts are controversial and have been subject to substantial criticism.
But in the family context, we have seen the envelope of vicarious liability pushed even further. In the Pinkerton scenario, for example, some precursors for liability are that the actor commit the criminal act of joining the conspiracy and that the additional crime at issue be committed in furtherance of the conspiracy and be reasonably foreseeable. But when it comes to family members, we are seeing efforts to impose liability in the complete absence of criminal conduct by the parents.. Although such efforts have a long history, there has been a new spate of such laws in recent years. In the last year, for example, a Cleveland suburb adopted an ordinance holding parents criminally liable if their children are charged with a crime; a third conviction under the statute could result in parents serving 180 days in jail. Although an Ohio court recently ruled the Cleveland ordinance unconstitutional, it remains true that the renewed enthusiasm for vicarious parental liability commands attention. One community in Alabama recently proposed that parents be held criminally liable when minors consume alcohol in their homes, even if the parent had no knowledge at all that the alcohol was being consumed.
According to one commentator, criminal parental liability statutes fall into four categories. “The first two categories, truancy and curfew laws, generally impose criminal liability on a parent who knowingly allows his or her child to commit acts (staying out past an established curfew; not attending school) which would not be criminal if committed by an adult.” The third category, “contributing statutes,” impose liability on parents, or potentially any adult, who affirmatively contributes to the delinquency of a minor for, by example, “sending a child to a brothel” or providing a weapon.
The fourth category is the most controversial and is exemplified by the Cleveland ordinance referenced above – statutes that in essence convict parents for crimes committed by their children, or even for “unsavory activities engaged in by children,” on a “failure to supervise” theory or the like. For example, Louisiana has a statute subjecting parents to up to six months’ imprisonment for permitting an unlicensed minor driver to drive a vehicle if the minor ends up involved in an accident that resulted in death or serious bodily injury to another person. The statute also makes it a crime for a parent, “through criminal negligence,” to permit “the minor to associate with a person known by the parent” to be a gang member, a convicted felon, or a drug dealer or user. A parent convicted under this particular provision faces up to thirty days in a jail and a $250 fine. The statute allows a parent to escape liability under these latter provisions if they sought assistance from various agencies in modifying the child’s behavior or if they referred “the child to appropriate treatment or corrective facilities.”
There are two separate inquiries related to these legislative efforts: First, are they likely to be effective at reducing the incidence of crime by minors? Second, even if effective, is it just to hold parents liable for crimes committed by their children? Professor Dan Filler suggests that such statutes could be effective if the consequences for violation were sufficiently severe and certain, although of course we might not be willing to live with stakes of such high magnitude. For example, if parents whose children threw an alcohol-filled party for their friends faced a felony conviction and a lengthy jail term, most reasonable parents would quickly “lock up the booze and perhaps install a nanny-cam to monitor the house.” It is also important to note that these statutes are only likely to be effective if they are enforced more than just occasionally; even though these statutes are on the books in a number of states, criminal prosecutions remain relatively rare. Still, there have been some high-profile prosecutions, including the St. Clair prosecution discussed above.
But even if these statutes were made effective, would it be just to use them against parents? Support for these statutes is apparently motivated by the belief that “poor parenting” is a root cause of much of the juvenile crime in this country. As one family outreach worker exclaimed, “We have an adult problem, not a children problem . . . If we can get our adults together, the children will naturally fall in line.” One commentator has suggested that that “the rationale behind the parental liability laws – punishing the parents to reduce acts of juvenile delinquency by their children – must be based on a series of interconnected assumptions:” first, that the nature of the child’s behavior is directly – if not primarily – caused by the quality of the parenting in the household; second, that we can somehow create a “universal model of adequate parenting,” which all parents can and should adopt regardless of their circumstances; and third, that the threat of punishment will induce parents to adopt this government-sanctioned model of parenting.
Critics of these statutes, on the other hand, argue that the link between poor parenting and juvenile crime is far less certain than proponents suggest. Juveniles are no doubt also profoundly influenced by their peers, by their schools, by their communities, by the media, and perhaps by their genetic make-up. In addition, the threat of criminal liability might actually negatively impact parenting, rather than enhance it. One critic suggests that parental responsibility statutes will induce some parents to “over-parent, that is by either severely restricting their child’s freedom or by excessively punishing the child.” Other parents might respond by “under-parenting,” that is, by distancing themselves from their children “by filing ungovernability or similar petitions to transfer responsibility to the state.” In either case, the relationship between parent and child would become more adversarial and negative, rather than more productive and positive.
Incest remains one of the enduring sexual taboos. It is also yet another compli-cated example of a situation where criminal liability may attach to a person only on ac-count of some familial status. While prohibitions of incest are usually made in a blan-ket form, in theory they can be grouped into three different categories: first is regulation of sex between adults; second is regulation of sex between an adult and a minor, and third is regulation of sex between minors. Most jurisdictions are unlikely to make these distinc-tions in part because they don’t even inquire into whether the participants jointly consent to the sexual activity. This raises normative questions we address in Part III.
Forty-seven states criminalize some forms of consensual sexual relations be-tween family members, although there is some variation between the states in terms of what relationships are prohibited. All states with criminal incest statutes ban sexual re-lationships between parents and their children, regardless of the child’s age. And all of those states but one also ban sexual relationships between siblings; most ban relationships between aunts and uncles and their nephews and nieces. There is more divergence on the question of cousins; only eight states criminalize sexual contact between first cous-ins, but twenty-five states do not permit first cousins to marry. Some states also extend their prohibitions beyond blood relationships: “twenty-two states criminalize sex between stepparents and stepchildren” and some (but not all, interestingly) states treat adopted children the same as biological children for purposes of incest prohibitions.
What are the rationales behind these incest prohibitions? The most commonly cited rationale for prohibiting consensual relations is that incestuous relationships have the potential to create children with genetic problems if the parties decide to reproduce. Moreover, incestuous relationships have special potential to be abusive and nonconsen-sual, and this coercion may be difficult to detect. Additionally, some have viewed the incest taboo as a way to “prevent intrafamilial sexual jealousies and rivalries” or to facili-tate the purported “social advantages of forming ties outside the family.” But these ra-tionales cannot account for the breadth of the incest prohibition in many states; for exam-ple, consensual relationships between adult adopted siblings raise neither genetic difficulties nor the specter of coercion. It is therefore impossible to underestimate the influence of the “disgust factor.” In large part, these relationships are criminalized be-cause Americans view them with distaste or because they are, in some situations, relig-iously proscribed.
The topic of consensual adult incest has actually been the subject of some legal and political discourse of late because of its links to the same-sex marriage debate. Some have suggested – with an intention to alarm – that if we legalize same-sex marriage, the legalization of incest is sure to follow. But in contrast to the issues of gay rights and same-sex marriage, there is no committed mainstream advocacy movement of which we are aware that is currently arguing for the liberalization of incest laws.
Similarly, there is very little legal scholarship seeking to make an affirmative case for greater recognition of intra-familial romantic relationships; rather, discussions about incest usually involve simply pointing out that many of the arguments made in fa-vor of the laws are problematic. For example, commentators remark that the evidence related to the possibility of genetic harm is far less certain than once believed, and, in any event, many of the relationships currently prohibited do not trigger this concern at all.
There are a few recent exceptions in the academic literature to this general pat-tern. For example, Christine Metteer argues that the individual’s constitutionally pro-tected right to marry trumps the state’s interest in prohibiting incestuous marriages when the parties are related only by affinity rather than consanguinity. More provocative is a recent article by Ruthann Robson, who suggests that “the proffered explanations for in-cest prohibitions should be deeply problematic for any same-sex marriage advocate.” She argues that attempts to justify prohibitions against incest by appealing to religion or longstanding community mores should be soundly rejected, because “tribal customs should not govern our current cultural mores and constitutional notions any more than Leviticus should prevail.” She also argues that we should reject the genetics justifica-tion, because it “rests upon identity between marriage and procreation – the same logic that is used to resist same-sex marriage.” Whatever one makes of these normative arguments, incest laws fit the more general pattern of punishing family status in certain circumstances within the criminal justice system.
Thursday, February 28, 2008
Punishing Family Status: An Introduction
Earlier this week, I mentioned that Ethan, Jennifer Collins and I have completed a working draft of our paper, Punishing Family Status, and have shipped it off to a number of law reviews. Today I reprint below the introduction--sorry for the formatting bloopers. In subsequent posts, I'll share the following sections of the paper. We're grateful for any comments or questions sent via email to us. When we've done some more revising, we'll put a version up on SSRN. This paper will be part of our book project, tentatively entitled, Privilege or Punish: Criminal Justice and the Challenge of Family Ties. I'll be presenting this paper a couple times in the next month and we are excited to share our findings and conclusions more broadly. Here's the intro.
On December 21, 2007, Molly Midyette was convicted of knowing and reckless child abuse as a result of the death of her ten-week-old son. The prosecutors did not allege that Molly beat her son to death, but instead that she failed to protect her son from repeated beatings inflicted by her husband Alex. At the time of his death, the baby was suffering from 27 fractures and a brain injury. Midyette faces a mandatory sentence of 16 to 48 years in prison because of her failure to act.
Stories like Molly Midyette’s abound. In the absence of her family status, Molly’s omission, or failure to rescue her child, would trigger no criminal liability. But because of it, she faces a very significant sentence. In this article, we examine the various places in the American criminal justice system where the law imposes burdens on defendants on account of their familial status or familial connection to the crime. Where do these burdens exist? Why do we have them? What’s wrong, if anything, with them, andhow can they be reformed? These questions are at the heart of our project, a project that picks up the story from where we last left off just a year ago.
Specifically, in a study we published last year, we examined how in many instances the criminal justice system affirmatively privileges defendants who are members of a state-sanctioned family unit. Our study uncovered a range of what we called “family ties benefits”: for example, in some states family members who harbor their fugitive relatives are exempt from prosecution; many states exempt family members from testifying against each other even in the most serious felony cases, and individuals who kill or rape family members are often subject to less serious penalties than those who attack acquaintances or strangers. In that article, we argued that extending such privileges on the basis of family status can incur serious but often obscured costs in the criminal justice system, particularly in terms of ensuring gender equality, fairness across similarly situated offenders, accurate outcomes, and crime prevention in the criminal justice system. We suggested that more careful design of such policies could help avoid many of the costs associated with what we called “family ties benefits.”
But standing alone that picture is incomplete and with this companion article we now try to round out the picture. As mentioned above, some forms of criminal liability are triggered because of one’s familial status – and for reasons that seem to have nothing to do with compensating for the “family ties benefits” we have already identified. These crimes include vicarious liability imposed on parents because of crimes committed by their children, omissions liability for failing to prevent harm to family members, and criminal liability for nonpayment of child support. Defendants are also burdened on account of their family status when they face prosecutions for incest, adultery, and bigamy. In all six of these instances, in the absence of the particular familial status of the defendant, the action or omissions at issue would largely be ignored by the criminal justice system or, in some cases, treated more leniently.
This Article analyzes these “family ties burdens” and asks whether they are justifiable or could be justified if reformed somewhat. Although scholars have considered some of these burdens individually, our contribution here is viewing these burdens synthetically and explaining what sense can be made of them once taken as a whole. Thus, in Part I, we survey the various sites in the criminal justice system where defendants who are members of families face special burdens, either through the creation of liability or the enhancement of punishment, that would not be visited upon individuals who are not members of a family unit.
We begin Part II by explaining why we have generally taken a “defendant-centered” perspective in thinking about the sites of family ties burdens, since many “burdens” on defendants based on family status may conversely serve to advantage the family members of such defendants (and potential defendants). Focusing on family ties burdens from the defendant’s perspective helps raise awareness of why such burdens are normative red flags. As we explain, most centrally, they have tremendous potential to discriminate. Consider the example of omissions liability. When the state charges an individual because of his or her failure to protect another human being from harm, the state is signaling that the relationship at issue is one worthy of special protection from the state. But in the context of family ties burdens, large numbers of persons who might justifiably, in our view, see themselves as entitled to benefit from the “omissions” burden are excluded. A hypothetical Jill cannot rely upon the state to signal to her life partner Denise that Denise is obligated by law to prevent harm to Jill. When the state makes choices regarding families, and uses the criminal justice system to send normative signals about those choices, it risks marginalizing persons who consider themselves family members but are not recognized as such by the state. In this sense, targeting persons with unusual treatment on account of familial status is an under-inclusive (and, at times, over-inclusive) mechanism to distribute both the tangible and expressive benefits conferred by the criminal law.
The rest of Part II constructs a normative framework to explain under what circumstances burdening family status might be justified. We highlight that the vast majority of the burdens implicate the core functions of families – the care-giving function. We impose liability on parents for their omissions because we believe they have a special obligation, one worthy of enforcement through the criminal justice system, to care for their children by protecting them from harm. If we structure burdens to revolve around the care-giving function, rather than on an individual’s status as a member of a state-sanctioned family, we have the potential to be far more inclusive, and indeed more protective, than if we base burdens on family status alone.
But we also show that there is, we think, an underappreciated (albeit imperfectly executed) method to the criminal justice system’s allocation of family ties burdens. The criminal justice system tends to enforce family ties burdens against those who have voluntarily chosen their care-giving role. That is, the care-giving function of the family is relevant to criminal justice especially in those cases where an individual has voluntarily entered into a status relationship and enjoyed the privileges associated with that relationship, making it seem more just to be required to carry some burdens in return. Building upon this internal coherence, we suggest that a voluntary care-giving orientation to burden allocation in the criminal justice system is much more attractive than allocation on formal familial status alone.
Part III rethinks the family ties burdens we identify in Part I, in light of the normative framework in Part II. We hope to show how many of the criminal justice system’s family ties burdens can be preserved in some form, so long as they are reconstructed to avoid the substantial costs of using family status alone to distribute burdens. In some cases, this won’t be possible, and we explain why and what to do about it.
One important caveat. There are many wonderful studies of the way the criminal justice system causes devastating harm to families and communities, especially in light of our incarceration practices. There is no doubt that many of the criminal law’s policies and practices disadvantage families in many ways – and without attention to this sort of disparate impact against families, policy designers risk tearing our social fabric at the seams. We agree that this lens is a critically important one in evaluating criminal justice policies. Nevertheless, this lens tends to track indirect results of other policies. For example, although lengthy jail sentences for minor drug crimes result in the tragic situation of too many children growing up without access to a parent, surely the primary intent of drug sentencing laws is not to separate children and their parents.
Our focus here is different and has yet to be sufficiently addressed by the community of scholars interested in how the criminal law pressures families. Here, we examine those distinctively purposeful practices that consciously target members of families for special burdens on account of their familial status. Scholars have been successful in analyzing the effects of certain criminal justice policies and practices on the family. But most scholars have not recognized the panoply of laws expressly written to disadvantage family status in some areas. It seems important and necessary to pause and think through how and why our laws intentionally punish family status, and how the underlying goals of such a choice might better be served. This Article hopes to clear that ground.
In defining our focus this way, we do not intend to suggest that the particular liabilities addressed in this Article are necessarily guided by the intent of hurting or burdening family life as such. Indeed, it may be that many burdens on family status are “remedial” or intended to benefit family life even if they penalize particular defendants on account of their familial status. But it is worth remembering that many laws disadvantaged women, for example, in the name of “protecting” them. Our purpose here is to excavate the family burdens currently imposed by the criminal justice system and to assess their desirability both now and as they could be.
 Bill Scanlon, Mom Guilty in Baby’s Death, Rocky Mountain News (Dec. 22, 2007).
 Although we use the phrase the American criminal justice system, there are actually many criminal justice systems in the United States operating at the local, state, and federal level under a host of laws, ordinances, principles and policies. Not all the practices we describe exist around the country in every single system but they are by no means atypical either.
 See Dan Markel, Jennifer M. Collins & Ethan J. Leib, Criminal Justice and the Challenge of Family Ties, 2007 U. Ill. L. Rev. 1147.
id.; see also Jennifer M. Collins,
Lady Madonna, Children at Your Feet: The
Criminal Justice System’s Romanticization of the Parent-Child Relationship,
 See Markel, Collins & Leib, supra note 2, at 1190-1199.
 We acknowledge that in some instances victims may feel as if they too, as well as defendants, have been harmed by family ties burdens.
 See, e.g., Donald Braman, Doing Time on the Outside (2004).
Monday, February 25, 2008
An Abstract of Punishing Family Status
I'm very happy to announce that Ethan Leib, Jennifer Collins and I have just shipped off a draft of our paper, Punishing Family Status, to a bunch of law reviews.
This paper tries to break ground by providing analysis of two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of “family ties burdens” or penalties that impose punishment upon individuals on account of their familial status. The six we train our attention on here are vicarious and omissions liability, incest, bigamy, adultery, and failure to pay child support. Part II develops a framework for the normative assessment of these family ties burdens.
By looking at these sites synthetically, we uncover what might be thought of as the secret ambition of these family ties burdens: namely, the promotion of voluntary care-giving relationships. We explain the nature of this rationale and its implications for proper policy design—particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status and instead capable of promoting voluntary care-giving.
We’re very excited about this paper, which is part of a larger book project -- tentatively entitled: Privilege or Punish? Criminal Justice and the Challenge of Family Ties -- that has received offers of publication from three top university presses: OUP, Yale, and CUP. Over the course of the next few weeks, we will be sharing highlights and excerpts of the paper. We welcome your substantive feedback via email or in comments here at least until summer 2008, as we will be revising this and our earlier effort together while integrating them into a unified book length treatment on how and why the criminal justice system discriminates against defendants (positively and negatively) on the basis of family ties or status. Stay tuned. And if you're interested in the whole draft of Punishing Family Status right away, please feel free to email me. We still have a bunch of comments we're responding to so we haven't yet put it up on SSRN, but we will in the next month or so.
Wednesday, September 19, 2007
(Re-)Introduction (Blumenthal Guest)
My apologies for getting a late start on this welcome opportunity to reappear. PrawfsBlawg was kind enough to invite me back; I hope I can have something to say over the next couple weeks. For starters, a Happy and Healthy New Year to anyone celebrating it (what the heck, even if you're not . . .).
Shortly I'd like to post about Chief Justice Roberts's visit today (right now) to Syracuse University, where he delivered speeches marking the dedication of a new building at the Newhouse School of Communication.
Thanks again for having me back.
Saturday, June 30, 2007
Copyrights and Pornography
Until 1979, copyright protection was effectively unavailable for "obscene" pornography. Then in Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir.), cert. denied, 445 U.S. 917 (1979) and Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir.), cert. denied, 459 U.S. 826 (1982), two courts expressly found obscenity protected by copyright law. Courts are not in compete accord on this issue as William Patry noted at his blog:
In the SDNY, then Judge Martin refused to grant a preliminary injunction and a pretrial impoundment and seizure order for movies he believed to be obscene writing, "Given the clearly criminal nature of plaintiff's operations, it is self-evident that the Court should not use its equitable powers to come to the aid of plaintiffs and should invoke the doctrine of clean hands and leave the parties where it finds them," Devils Films, Inc. v. Nectar Video Corp., 29 F. Supp.2d 174, 175 (S.D.N.Y. 1998).
As Patry also noted, in Nova Products, Inc. v. Kisma Video, Inc., 2004 U.S. Dist. LEXIS 24171 (S.D.N.Y. Dec. 1, 2004), Judge Baer decided to follow Mitchell Brothers, writing:
In its well-reasoned and scholarly opinion, the Fifth Circuit reviewed the history of the copyright legislation and found that all-inclusive language of the Copyright Act of 1909, 17 U.S.C. § 34 (1970) (repealed), which encompassed "all the writings of an author," did not bespeak of an obscenity exception to copyright protection. The Fifth Circuit further reasoned that the existence of other restrictions in the related areas of trademarks and patents, together with the need for a uniform system of copyright, which could be fragmented by the community-driven obscenity standard, counseled against finding an obscenity exception. Finally, the Court was reluctant to stifle creativity and enlist "the judgment of government officials regarding the worth of the work."
Congress never addressed this issue in the copyright, and with the exception of Bill Patry, copyright scholars haven't had much to say about pornography specifically, even though many high profile copyright cases (such as this recent one and this golden oldie) involve pornographic content. I think studying and theorizing the roles that copyright law plays in the production, distribution and consumption of pornography would be useful and instructive in many regards (as I noted here and here), but I'm not sure how likely it is to happen. Some law profs think that pornography is socially beneficial (see e.g. this and this), but I disagree (e.g. here and here) as do others. Because the IP Clause of the U.S. Constitution authorizes copyright law only to the extent that it promotes the progress of science and the useful arts, one might expect the copyrightability of pornography to be more controversial than it has been so far, given the incentives that copyrights provide and the government resources that are required to sustain the copyright legal regime. That both policy makers and legal scholars choose to ignore these issues gives pornography a privileged position with respect to more interrogated categories of created works such as mainstream music and non-pornographic movies. I'm interested in any opinions about whether pornography should be copyrightable, and why so many people are willing to assume that it should be without reflection.
Monday, June 18, 2007
"...you can use sex to sell jewelry and cars, but you can’t use sex to sell condoms."
That post heading is a quote from this NYT piece, which reports that CBS and Fox have refused to run a Trojan Condoms commercial described in the article as follows:
In a commercial for Trojan condoms that has its premiere tonight, women in a bar are surrounded by anthropomorphized, cellphone-toting pigs. One shuffles to the men’s room, where, after procuring a condom from a vending machine, he is transformed into a head-turner in his 20s. When he returns to the bar, a fetching blond who had been indifferent now smiles at him invitingly.
Directed by Phil Joanou (“State of Grace”), with special effects by the Stan Winston Studio (“Jurassic Park”), the commercial is entertaining. But it also has a message, spelled out at the end: “Evolve. Use a condom every time.” [You can watch the ad here.]
The quote is catchy, but it is wrong. Using sex to sell condoms is apparently only problematic if there is a focus on women's issues. David S. Cohen blogged an appropriately critical take on CBS and Fox's refusal to run the ad here. The NYT article points out that both CBS and Fox had run advertisements for Trojan Condoms before, "which urged condom use because of the possibility that a partner might be H.I.V.-positive, perhaps unknowingly," and the article's author, Andrew Adam Newman concluded that those networks found a disease prevention message much more palatable than a pregnancy prevention one. He based this conclusion in part on Fox's written statement to Trojan asserting: "“Contraceptive advertising must stress health-related uses rather than the prevention of pregnancy.” Since pretty much every use to which a condom is put (excepting filling them with water and throwing them from the roof) involves sex, this rigid preference for a focus on disease prevention seems to be based in a very male oriented view of condom utility.
Another related and gendered anomaly is the fact that condoms are advertised as tools to reduce the risk of catching or spreading H.I.V. and other STDS, but rarely if ever specifically mention HPV. In a very provocative essay entitled "The Left, HPV, and Cancer," Richard Leader writes:
Conservative men would rather their daughters die of cervical cancer than give them a vaccine that would allow them to make their own sexual choices in life. That’s the theory given by any number of liberal writers in the political debate over Merck’s Gardasil product. They very well might be correct.
What about men on the Left though? What would we prefer for women? All evidence seems to point to the fact that we really don’t care what kind of cancer they die from, so long as they keep putting out.
He notes that the causal link between HPV and cervical cancer has been known for well over a decade, there has never been a campaign aimed at stopping the spread of HPV through condom use, and his theory is this is because it causes cancer primarily in women, the people with cervixes. It is only now that cervical cancer has become a commodity as a consequence of the marketing campaign for Merck's Gardasil, he asserts, that HPV is receiving sustained media attention.
Like Leader, I have been struck by the fact that the Gardasil vaccine is recommended only for women and girls, and in fact has only been tested for safety and efficacy on women and girls, a clear signal that stopping the spread of HPV is viewed as the sole responsibility of females. Leader concludes:
Inflicting cervical cancer upon someone was never a consideration of men. HPV strains that did not burden a male with unsightly warts were deemed not worth testing for by the medical establishment; out of sight, out of mind. There were no marches. Penises were never called “the original cancer sticks.” No man ever curtailed his sexual behavior on account of it, admitting that even condoms not might prevent its transmission.
And yet that same generation of Leftist men, cure in hand, now accuses religious fundamentalists of murderous indifference.
It is only now that women can be saved—and pockets can be lined—that women are allowed to fear HPV and the very worst of its effects. Indeed, they are even encouraged to fear it. Before, it was merely part of heterosexual life for women, an uncommon yet ordinary consequence of all we ordained as “natural.” Bad luck, or the Will of God, cancer was seen as outside the domain of male control.
I know that Leader's essay will strike non-feminist Prawfsblawg readers as somewhat extreme, and perhaps difficult to read and process, but agree or disagree, he will make you think about this issue in ways you probably haven't before.
Thursday, June 07, 2007
Politics As Usual: He's A "Stud" While She "Works The Pole."
This is a photograph of possible '08 Presidential candidate Fred Thompson with his spouse, Jeri Kehn:
See also. The New York Post has referred to Kehn as Thompson's "Babe Wife." This article also observed:
"Kehn scored a coup in convincing Thompson, who had won the nickname "The Tennessee Stud" during his D.C. bachelorhood, to meet her at the altar."
Flashed around the country Thursday was yet another full cleavage shot of Fred Thompson’s child wife looking almost as well-endowed as Alex Rodriguez’s stripper/pole-dancer girlfriend. “That was quite a dress,” said one GOP analyst, breathless.
Perhaps Fred’s wife “Jeri” - yes, with an “i” - helps Fred with AARP, Viagra-ed up men: “You still got it goin’, Fred, you dirty dog.”
MSNBC's Imus replacement commentator, former Republican Congressional Representative Joe Scarborough, recently had this on air exchange about Kehn:
SCARBOROUGH: Have you seen Fred Thompson’s wife?
CRAWFORD: Oh, yeah.
SCARBOROUGH: You think she thinks she works the pole?
CRAWFORD: That’s what a Hollywood career will do for you, I guess.
SCARBOROUGH: What do you mean?
CRAWFORD: You get wives like that.
SCARBOROUGH: I mean, look at that guy. God bless him, I love his voice. But I mean, you know. He ain’t Robert Redford in “Butch Cassidy and the Sundance Kid.”
CRAWFORD: Well I would like to see him back into politics because I think he’s a lousy actor.
Video of MSNBC's Joe Scarborough bantering on the cable news network Friday about whether Fred Thompson's wife "works the pole" is sparking criticism of Scarborough from the right, left and in between. A spokesman for the news network said this afternoon, though, that the comment has been taken out of context and that it is "irresponsible" to suggest Scarborough was employing sexual innuendo. "Works the pole" could have been a reference to poles that some strippers use in their acts. MSNBC says it was a reference to an exercise routine that a growing number of women are performing.
As both an actor and politician, I have to assume Thompson understands the importance of his public image, and that of his wife. Kehn is described in the NY Post article linked above as "a former Senate staffer and Republican National Committee mouthpiece" and "a sassy political pro who could help his cause in the White House." It is difficult to divine what, if anything, her style of dress says about Thompson's perceptions of the current electoral zeitgeist. Is Kehn willing to be publicly portrayed as a "pole worker" to burnish Thompson's reputation as a "stud," or did the media coverage turn out differently than they expected? If Thompson didn't anticipate this kind of reaction, his political instincts probably aren't all that good.
Tuesday, June 05, 2007
Male Attorney More Effective As Female Online
Over at Madisonian Theory, Fred Yen notes:
Today’s law.com has a interesting story about law firms conducting investigations to enforce clients’ IP rights on the Internet. It describes how a Covington and Burling lawyer impersonated a “flirtatious 27 year old female programmer” in chat rooms to identify software pirates and have them arrested. The rest of the story discusses online IP enforcement as a major growth area for law firms as clients spend significant resources to stop the sale of infringing goods. ...
On the Internet, no one knows if you're a dog. Or a well-tailored lawyer in the London office of Covington & Burling. That fact has guided Peter Anaman's entire career over the last seven years. The 33-year-old British-trained attorney is the head of Covington's Internet monitoring and investigation unit, and he uses multiple online personas to nail bad guys: sellers of counterfeit goods and pirated software, hackers, phishers, you name it. ...
The article doesn't explain how many of Anaman's "multiple online personas" claim to be female, but notes that he "managed to infiltrate [a software infringement] ring in a matter of months by pretending to
be a flirtatious 27-year-old female programmer who complained a lot
about her boss in online chat rooms." Perhaps it amuses Anaman that the folks he sent to prison erroneously believe they were betrayed by a women. Or maybe he correctly deduced that his targets would assume a woman was powerless and harmless, and easily let their guards down around her. I think Fred Yen is correct that using subterfuge to identify infringers is potentially unethical or illegal.