Vol. 2 No. 3 (March, 1992) pp. 38-40
WOMEN IN AMERICAN LAW: THE STRUGGLE TOWARD EQUALITY FROM THE NEW DEAL TO THE PRESENT by Judith A. Baer. New York: Holmes & Meier, 1991. 350 pp. Cloth $45.00. Paper $24.95.
Reviewed by Susan M. Olson, Department of Political Science, University of Utah
Judith Baer intends her book to serve the dual purpose of an undergraduate textbook and a book for general audiences on women and the law. I believe she has been enormously successful. The book covers a vast range of subjects and makes complex legal doctrines accessible in a style that is lively and often humor- ous.
Her principal theme is the contradiction between the formal legal equality of men and women, now largely achieved in American law, and the persistent reality of inequality because of women's greater responsibility for the domestic sphere -- housework, child care, tending elderly parents, and so forth. She notes the irony that in the last century (and mainly in the last twenty years) formal American law has changed from being more harshly patriarchal than many women's day-to-day experience actually was to being much more egalitarian than most women now experience. When married women had no legal identity separate from their husbands, many women nonetheless enjoyed caring and secure relationships. Now when most laws are gender-neutral and men and women formally equal, poverty has become "feminized," women work a "double shift" of paid and unpaid labor, and rape remains commonplace.
An ultraconservative could, I suppose, draw from this evidence the conclusion that women were better off before or even that formal legal equality somehow caused women's situation to deteriorate. (Teachers of undergraduate classes, beware.) Baer, in contrast, uses this situation to discuss the complex relation- ship between law and society. She emphasizes the many gains women have made from legal reforms, but notes that there are limits to what one can expect from law, at least within the American tradition. She stresses that law is not all-powerful, but also not powerless. Ultimately, she is optimistic that continuing to use law to equalize women's economic power will gradually improve their ability to achieve a more equal distribu- tion of burdens in the private sphere.
A secondary theme of the book is the relation of patriarchy to race and class oppression. She makes clear in the introduc- tion that patriarchy is only one of several possible asymmetrical relations, and that some women are more oppressed than others. She repeatedly returns to class differences when discussing issues such as employment and reproductive rights and occasional- ly returns to race, as in her discussion of rape. At the same time she puts forth a rousing rebuttal of the stereotype of the selfish, affluent, feminist professional (p. 160) and devotes a sizable segment to analyzing "feminist bashing" (pp. 286-91).
Page 39 follows:
Because it includes not only federal constitutional and statutory law but also topics that are still entirely matters of state law, the book is probably the most comprehensive new non- case law book available on women and law. The book's subtitle and Baer's comments in the introduction make clear the book's focus on the contemporary legal status of women, but they almost suggest the book is more limited than it is. Where appropriate, Baer summarizes the earlier legal status of women with respect to issues such as family violence, birth control, and participation in the public arena. On the other hand, beyond her general discussion in the first two chapters of the changing role of the federal government in shaping social policy at the time of the New Deal, that admittedly arbitrary starting point does not play much role in the book.
The organization of the book is by topic: women and the constitution (levels of scrutiny, overt and facially neutral discrimination, and the Equal Rights Amendment); employment (equal pay and comparable worth, Title VII, and affirmative action); the private sphere (divorce, custody, widowhood); reproduction (birth control, sterilization, surrogate motherhood, and abortion); education and participation (discriminatory private associations); and women in the legal system (rape, family violence, pornography, women criminals, and women lawyers and judges).
Baer is at her very best on the constitutional topics. She not only explains the Supreme Court's evolution of different levels of scrutiny in understandable terms, but also pauses to provide more detailed critiques of the requirement of proving intentional discrimination and of the reasoning of GRISWOLD V. CONNECTICUT and ROE V. WADE. She uses the somewhat less familiar cases on rights of unwed fathers to illuminate both the benefits that men have gained at least as much as women from greater scrutiny of gender classifications and the Court's apparent preference for stereotypical sex roles.
Baer does not shy from controversy. She is forthright in stating her own opinions and in giving clear and candid accounts of conflicts among feminists, as in the SEARS and CALIFORNIA FEDERAL cases. One of the most appealing features of the book is Baer's dry wit. For example, in noting that the last constitu- tional sex discrimination case in which the successful plaintiff was a woman occurred in 1981, she quotes Nora Ephron's comment that "the major concrete achievement of the women's movement in the 1970's was the Dutch treat." Baer examines Ephron's metaphor and finally concludes that it is not such a bad description of equal protection doctrine after all: "[L]et us remember, women's privileges, like being their dates' dinner guests, often did carry the unstated presumption that they imposed various social burdens which might euphemistically be termed reciprocal obliga- tions. A woman who pays for her own meal is free of such bur- dens" (p. 52).
The shortcomings of the book are few and minor. Occasional specific points could use elaboration or clarification to avoid readers' possible confusion. For example, Baer jumps directly from talking about labor union opposition to the Equal Rights Amendment to discussing women's reduced need for protective
Page 40 follows:
legislation because of the benefits of unionization (p. 54). An additional paragraph about women and labor unions might make those two seem less inconsistent. Similarly, she cites the now- familiar figures about men's standard of living improving after divorce while women and children's decline (p. 136) and then two pages later attributes some men's post-divorce behavior to a sense of relative deprivation. These two may be compatible, but a little more discussion is needed to make that clear.
Although the authors and her editors undoubtedly agonized over what to leave out to keep the book to a manageable length, I feel that the chapter on Women in the Legal System gives the least adequate treatment of the many subjects it includes. The discussion of pornography in particular is just over two pages in length and would need to be supplemented with other readings for a full class discussion of the issue. Although Catherine MacKin- non's and Donald Downs's books are cited in the footnotes at the back of the book, no book on pornography is included in the sources suggested prominently at the end of the chapter--a helpful feature at the end of each chapter in the book.
Baer's emphatic opinions will provide grist for lively arguments. Some may be offended by her largely unsympathetic reaction to noncustodial fathers (p. 145). Her analogy between opponents of public funding of abortion and 1960s peace activists' tax protests to make the point that "citizens have never been allowed to refuse to pay for activities of which they disapprove" (p. 201) ignores the difference that the former taxpayers have been able to gain the legislative majority to write their preferences into law.
Although I completely agree that unequal distribution of housework and child care responsibilities is the single biggest barrier to women's equality, I would have liked Baer to include a description of family life in one of those admittedly rare families where an equal distribution actually occurs. To resort to feminist utopian fiction for a portrait of sexual equality, as Baer does, makes the prospect of men assuming more domestic responsibilities seem nearly hopeless when, in fact, a few men are doing it now and, if not thriving, at least surviving.
Baer's stated hope for the book is that readers will allow their disagreements with her opinions to stimulate further thought and research (p. Xiii). I think the book will accomplish this, which is a great testimony to its clarity, thoroughness and provocative humor.