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).
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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
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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.
Copyright 1992