Vol. 5 No. 1 (January, 1995) pp. 5-11
CONTEMPORARY CASES IN WOMEN'S RIGHTS by Leslie Friedman
Goldstein. Madison: University of Wisconsin Press, 1994.
WOMEN'S RIGHTS AND THE LAW by Laura Otten. Westport, CT: Praeger,
1993.
Reviewed by Alice Hearst, Smith College
As gender studies becomes an established part of the graduate and
undergraduate curriculum, it is exciting to be witness to an
increasing variety of readers and texts on the subject of women
and the law. Two new additions to the fold are CONTEMPORARY CASES
IN WOMEN'S RIGHTS by Leslie Friedman Goldstein and WOMEN'S RIGHTS
AND THE LAW by Laura Otten.
Exactly as it claims, the Goldstein book is a comprehensive
compilation of contemporary cases in women's rights. Professor
Goldstein was one of the first scholars to design a text looking
at women and the Constitution: THE CONSTITUTIONAL RIGHTS OF
WOMEN, published first in 1979, and issued in a revised and
updated edition in 1988, has long been an admired standard in the
field. The present book could act as either a supplement to that
text, or could stand alone when questions about women's legal
status form a smaller component of a course. Most of the cases
contained in this collection are United States Supreme Court
Cases, although Professor Goldstein has included a select number
of state court cases raising interesting issues that affect an
understanding of women's position under the law.
CONTEMPORARY CASES IN WOMEN'S RIGHTS begins by reviewing the
development of a right to privacy in matters relating to sexual
intimacy. With a short discussion of the Court's authority to
articulate unenumerated rights under the Constitution, Professor
Goldstein introduces the reader to those larger questions about
the Court's power embedded in all of its decisions on substantive
due process. Adverting briefly to the genesis of rights of
marital privacy and procreative freedom in cases such as SKINNER
V. OKLAHOMA (an important but oft-neglected case), Professor
Goldstein's narrative summary travels smoothly from GRISWOLD V.
CONNECTICUT through the abortion cases of the late 1980's. It is
a clear and focused analysis that provides a road map for
students who are otherwise unfamiliar with those doctrinal
developments.
From the first chapter putting privacy rights into historical
perspective, Professor Goldstein moves to contemporary cases in
the areas of abortion rights and parental authority in two
subsequent chapters. Chapter Two provides readers with the texts
of WEBSTER V. REPRODUCTIVE HEALTH SERVICES, RUST V. SULLIVAN, and
PLANNED PARENTHOOD V. CASEY, together with clear introductory
notes placing the cases in context. The cases are followed by a
series of thoughtful questions that should prompt readers to
reflect on the nature and consequences of the decisions and the
future of abortion rights in general.
Chapter Three, entitled "Parenthood and Privacy,"
contains some of the most interesting cases in the book: IN RE
A.C., considering a trial court's ruling ordering a terminally
ill woman to undergo a Caesarean section in an attempt to save
her twenty-six week old fetus; MICHAEL H. V. GERALD D., upholding
California's (since amended) conclusive presumption of paternity
against a charge that it violated a biological father's
substantive due process right to establish and maintain a
relationship with his daughter; IN THE MATTER OF BABY M.,
involving the rights of surrogate mothers; and, finally,
MISSISSIPPI BAND OF CHOCTAW INDIANS V. HOLYFIELD, enforcing
tribal authority under the Indian Child Welfare Act to exercise
jurisdiction over adoption proceedings when the children's Indian
parents, domiciled on the Choctaw Reservation, attempted to place
the children for adoption in non-Indian homes.
Each of these cases raises fascinating questions about the ways
in which the Court constructs the rules governing family
relations, but it may be difficult for students, particularly
undergraduates, to make the direct tie to issues of women's
rights, particularly with the MICHAEL H. and HOLYFIELD cases.
While the cases contain the common link of referring to parental
rights, the contexts -- and the legal background against which
they were argued -- is sufficiently disparate to create
confusion. In particular, it might have been appropriate if
Professor Goldstein had included some explanatory note about the
ways in which questions of parenthood and reproduction condition
women's lives. That discussion is not entirely absent: one of the
questions posed after MICHAEL H. asks students to consider
whether recognizing the parental rights of unmarried mothers
while erecting barriers in some cases involving unmarried fathers
(the circumstances of MICHAEL H. are convoluted) violates
constitutional guarantees of equal protection. Nonetheless, a
more extended discussion of the tension between issues of women's
individual autonomy and family autonomy seems appropriate; the
relationship between the two remains here largely implicit.
Moreover, without some clear explanation of the ways in which
rights of privacy and rights of equality intersect to affect both
women's status under the law and legal understandings of the
nature of family and parenting rights, some of the significance
of cases like MICHAEL H. might be overlooked.
The same concerns arise with respect to other cases in this
section. While MISSISSIPPI BAND OF CHOCTAW INDIANS V. HOLYFIELD,
for example, does indeed raise compelling questions about the
scope of parental authority, students reading that case may have
difficulty evaluating its outcome unless they are made keenly
aware of the tragic social history of adoption of Indian children
by non-Indians. Both the Indian Civil Rights Act and the Indian
Child Welfare Act have complicated histories which are intimately
tied to questions about the special relationship between Indian
tribes and the federal government and the nature of tribal
sovereignty.
Chapter Four departs from questions of privacy to move into
problems of gender discrimination. Professor Goldstein provides
an excellent short introduction to the materials, with a clear
and concise explanation of the applicable legal standards and the
impact of recent statutory changes in discrimination law.
Nonetheless, the cases reprinted here -- PRICE WATERHOUSE V.
HOPKINS, UAW V. JOHNSON CONTROLS, and ELLISON V. BRADY provide a
provocative sampling of cases dealing with gender stereotypes,
and the questions following the cases are thought provoking and
carefully drafted.
As Professor Goldstein notes in the introduction to the text,
some of the issues contained in these cases raise questions
germane to other sections of the book, and students may need to
be reminded of that overlap. They may wonder, for example, why
JOHNSON CONTROLS was not discussed in connection with
reproductive rights. On that point, as noted above, a more
extended discussion of the relationship between privacy concerns
and questions of equality might have made this an easier
transition for students new to the study of women and law. In
addition, as I read this section of the text, I debated whether
it might have benefitted from a more detailed discussion of the
equality/difference debate, an issue that is germane to the
questions raised in, e.g., JOHNSON CONTROLS. That debate
continues to be an important one in understanding the contours of
judicial approaches to women's rights under the Equal Protection
clause, and a paragraph or two laying out those concerns, would
add to students' understanding of the range of problems raised in
these cases in general.
Finally, the book treats questions of sexual violence and
pornography in the contexts of rape, domestic abuse and
pornography. MICHAEL M. V. SONOMA COUNTY, challenging
California's statutory rape law, STATE V. RUSK, raising questions
about the legal classification of nonviolent coerced intercourse,
STATE V. STEWART, addressing the invocation of self-defense as a
justification for the murder of an abusive husband, and AMERICAN
BOOKSELLERS V. HUDNUT, evaluating an ordinance regulating
pornography as sexually discriminatory speech, comprise the cases
in this section. While each case is worthy of inclusion, students
again might have some difficulty tying the cases together, and
perhaps more explicit attention to their commonality -- and the
big picture questions generated thereby -- might have been
useful.
Overall, CONTEMPORARY CASES IN WOMEN'S RIGHTS is a highly
readable and thoughtful collection of cases. My points of
critique are minor ones: Students utilizing this text will be
stimulated to think about difficult and uncomfortable questions,
and that is exactly what a good text ought to do.
Laura Otten's book, WOMEN'S RIGHTS AND THE LAW, is more
comprehensive in scope, and quite different in approach. Tackling
an enormously diverse range of topics covering a lengthy period
of time, Professor Otten does an admirable job of presenting a
history of women's rights to gender equality, primarily
challenges brought under the Fourteenth Amendment's Equal
Protection clause. The narrative approach synthesizing a large
body of case law will appeal to students new to reading legal
materials.
This text sets out "to uncover the law's image and treatment
of women over time" as revealed by Supreme Court cases.
(p.2) The scope of the project alone justifies Professor Otten's
decision to limit the focus to Supreme Court cases perhaps better
than her assertion that "only one law appears appropriate
[to evaluate women's position and] [t]hat law is the law of the
courts." (Id.) While there is some truth to that
proposition, it goes too far. Certainly, it is interesting to
follow the Court's interpretation of both the Constitution and
the recently enacted statutes addressing problems of gender
discrimination, but it is surely rather a broad claim -- and
unsupported here -- to assert that "[a] law that has never
been challenged leaves women's position sketched in only
vaguely....To understand a law's "real" function, we
must look at a law that has been challenged in a court and...has
been interpreted...[because that] interpretation...clearly tells
society just how, or whether, the law should be put into practice
and function." (Id.) On the other hand, Professor Otten's
discussion of the sociological functions of law in Chapter 2 is
clear and thought-provoking, and provides a grounding for the
decision to evaluate doctrinal developments throughout the
remainder of the text.
Further in Chapter 2, Professor Otten quickly reviews some of the
basics of judicial review, the relation between state and federal
courts, and the processes of Supreme Court decisionmaking. As
with any text of this sort--and the same thing is true with the
Goldstein book -- the discussion is of necessity brief, and
students may need to be reminded of the information contained in
this section as they proceed through the remaining materials.
The substantive discussion of women's equality rights begins with
Chapter Three. Professor Otten utilizes readings from Ashley
Montagu and Leslie Pogrebin to get the reader started thinking
about the nature and consequences of sex discrimination and its
consequences. In this chapter, Professor Otten also does a nice
job of outlining the variety of sexual stereotypes to watch for
in legal pronouncements.
Chapter Four provides a brief look into the status of women at
the time the Constitution was drafted, and includes Abigail
Adams's well known appeal to her husband to "remember the
ladies", as well her husband's dismissive replies to that
appeal. The other readings, the Marriage Protest of Lucy Stone
and Henry Blackwell, the Seneca Falls Declaration of Sentiments
and Elizabeth Cady Stanton's comments in A Married Woman's
Property Act, among others, are absorbing and reveal the genesis
of a number of the stereotypes that the remainder of the text
critiques.
With Chapter Five, Professor Otten shifts into tracing the
development of case law defining women's rights. The text moves
from a discussion of Myra Bradwell's efforts to be admitted to
the Illinois bar in BRADWELL V. ILLINOIS through cases like MINER
V. HAPPERSETT, denying women the right to vote, MULLER V. OREGON,
sustaining protective legislation for women, and up to GOESSART
V. CLEARY, sustaining the Michigan law limiting women's power to
work in a bar. As Professor Otten's explanatory text notes, that
series of cases repeatedly refused to recognize women's rights to
compete on equal footing -- either in the workplace, or as
citizens generally--with men.
Chapter Six opens with the Court's decision in HOYT V. FLORIDA,
which, according to Professor Otten, was "the last of a
series of ...decisions endorsing the categorical denial to women
of opportunities available to men." (p. 81) That case is
juxtaposed against REED V. REED, to illustrate the turn of mind
as the Court finally began to recognize gender as a problematic
statutory classification, laying the groundwork for the law's
contemporary treatment of women's equality. While tracing the
legal developments of the 1970's, Professor Otten briefly notes
the Court's holding in ROE V. WADE, but here makes a tactical
decision. While noting that ROE had "widespread consequences
for women...[and] "altered [women's status]", (p. 95)
she nonetheless eschews any further discussion of the emergence
and development of women's rights to privacy on the basis that
the case did little to significantly alter stereotypical
perceptions of women or to move women toward gender equality, a
curious choice that is discussed below. Professor Otten then
continues to chart the development of women's rights to equality,
with a lengthy discussion of WEINBERGER V. WIESENFELD, in which
the Court sustained an equal protection challenge to a provision
of the Social Security Act that allowed widows with dependent
children to collect social security benefits while denying that
right to widowers. As Professor Otten notes, the case is
significant for the majority's willingness to recognize that
women can be the primary earner in a family.
Chapters 9 through 11 essentially chart the equal protection
cases considered by the Court from 1976 to the present: CRAIG V.
BOREN; the gamut of gamut of employment discrimination cases from
DOTHARD V. RAWLINSON through MERITOR SAVINGS ASSOCIATION V.
VINSON to UAW V. JOHNSON CONTROLS; and a variety of other cases
including MICHAEL M. V. SUPERIOR COURT OF SONOMA COUNTY, and
PERSONNEL ADMINISTRATOR OF MASSACHUSETTS V. FEENEY. The cases are
developed chronologically, and are well organized to reflect the
tensions that continue to plague the Court's understanding of
gender equality, and to show the Court's inability to completely
disregard the gender stereotyping that results in halting
progress for women. Students utilizing this text will emerge with
a fairly comprehensive understanding of the development women's
equality rights and the contemporary status and the major
concerns affecting the development of that doctrine in the
future.
At this point, however, I want to return to Professor Otten's
decision to forego any lengthy discussion of women's privacy
rights. Admittedly, the object of this monograph is to look at
the articulation and development of gender stereotypes in cases
raising primarily equal protection challenges, so that the
assertion that ROE and other reproductive rights cases do not
speak directly to those stereotypes is at one level accurate.
Professor Otten notes:
The fact is that the status of women was of no real concern to
the Court in deciding ROE, and that is perhaps where the true
"women's issue" in ROE lies. There were no
pronouncements about women's appropriate sphere, or her ability
to fend for herself. There were no endorsements of stereotypical
notions of women's role and status...[nor any] ground breaking
announcements as to whether the Court was changing its perception
of woman's role and status in society. (p. 95)
Nonetheless, the recognition of reproductive rights -- and the
ability of women to control their procreative lives --
significantly affects the ways in which women's claims for
equality take shape: privacy rights have been instrumental in
breaking down stereotypes of women based upon assumptions about
their reproductive capacities, which is key to discussing matters
of gender equality. Professor Otten is aware of these issues,
noting, for example, after discussing GEDULDIG V. AIELLO, that
"women are entitled to equality with males in the public
sphere ONLY TO THE EXTENT that they arrange their lives and their
priorities in the way that males have traditionally arranged
theirs -- maintaining a full-time career pattern without time off
for familial demands." (p. 118) As noted in the discussion
of Professor Goldstein's book, above, the intersection of privacy
and equality doctrines is complicated: it affects the manner in
which women's claims to equality are evaluated, not least because
the existence of reproductive rights transforms the childbirth
and childrearing into matters of choice, which can impair women's
claims to equality over the long term.
On a different note, several other concerns surfaced as I read
the text. In the initial chapters, Professor Otten's presentation
of the materials seems quite balanced, heeding the extensive
advice laid out for readers at the conclusion of Chapter 1 to
engage value-free reading of the materials in the book. Yet as
the text progresses, the tone becomes more and more imperative.
Questions addressed to students leave little room for thoughtful
disagreement:
Which is the true profemale stance [in MICHAEL M.]: the
paternalistic position of the Court plurality or the egalitarian
position of Justice Stevens? Who is really antifemale: those who
say, "There, there, we will think for you and protect you
because you aren't quite ready to think for yourself," or
those who say, "You are responsible for the consequences of
your actions?" (p. 181)
Did women win in CRAIG, or were they severely harmed? Has the
ability to fall back on "intermediate scrutiny" acted
over the years as a helpful proxy (for the justices) to avoid
confronting the politically and legally tricky issue of declaring
sex a suspect class? And thus, have women once again been held
back and closed out? (p. 141)
By endorsing the notion [in MICHAEL M.] that because men suffer
least from the consequence of statutory rape, they are being
punished for the rape while women are not, is not the Court at
the same time endorsing the notion that men are less responsible
for their offspring, whether legitimate or not? And thus is not
the Court, after having begun finally to free its decision making
from stereotypical notions, returning to support yet another
facet of traditional sex role stereotypes--that women nurture but
men do not? (p. 178)
On one occasion in the text, there seemed to be confusion over
the nature of questions revolving around facially neutral
statutes. In discussing FEENEY, Professor Otten asks, "Can a
law whose admitted consequence is disproportionate discrimination
against one group really be said to be facially neutral? If on
the face of things, the law is still recognized as carrying a
discriminatory IMPACT, though not necessarily a discriminatory
DESIGN, where is the neutrality?" (p. 166) This discussion
seems to misunderstand the concept of facial neutrality: In fact,
the answer to the question of where the neutrality lies is on its
face.
Organizationally, the text would benefit from an expanded table
of contents listing the cases excerpted in each chapter. In
addition, while Professor Otten often had illuminating comments
on the cases, it was occasionally awkward because the comments
were inserted between the majority, concurring and dissenting
opinions, which made it difficult to keep track of whether the
author or the Court was speaking. Finally, given the text's focus
on stereotypes, it might be useful to explore the ways in which
stereotypes change, depending upon whether the women in issue are
poor or women of color.
Both of the books reviewed here are a welcome addition to the
growing literature on women and the law. The Goldstein book does
not purport to be the treatise on women's rights that the Otten
book claims to be, and the audiences will therefore be quite
different, but both are books well worth considering. .
Copyright 1995