Monday, November 24, 2014

Three by Ziegler

Mary Ziegler (credit)
Mary Ziegler, Florida State University College of Law, has posted three recent or forthcoming articles:

No Such Thing as Race: Exploring the Past and Future of Affirmative Action after Schuette
On the surface, Schuette v. Coalition for Affirmative Action leaves the constitutional law of affirmative action undisturbed. Michigan had amended its state constitution to prevent the use of racial preferences by any university system or school district. Rejecting a fourteenth-amendment challenge, the Court upheld Michigan’s law. The Schuette plurality went to considerable lengths to explain that Schuette in no way touched on the constitutionality or merits of race-based admissions. Just the same, understood in historical context, the Schuette majority lays bare profound new dangers confronting proponents of affirmative action. In addition to praising colorblindness, the Court cast doubt on the very definition of race.

This Article historicizes Schuette, revealing it to be a turning point in the law and politics of affirmative action. In the past, activists consistently used race to describe the color of one’s skin, but before Schuette, the meaning of race itself had not played a central part in challenges to the constitutional legitimacy of affirmative action. As Schuette shows, anti-affirmative action amici and activists have developed a new argument: a claim that if race is a social construct, race-conscious remedies are arbitrary, unfair, and likely to reinforce existing stereotypes.

As the new anti-affirmative action activism makes plain, the question is how courts can address racial discrimination when racial identities themselves are fluid and complex. The Article looks to employment discrimination law — and to “regarded as” liability — as a framework for judges seeking to address the reality of race discrimination without reifying racial categories. Under the Americans with Disabilities Act (ADA) and the Americans with Disability Act Amendments Act of 2009 (ADAAA), a worker may in certain cases seek relief when she is regarded as disabled — regardless of whether she actually belongs to a protected class. The Article argues that regarded-as reasoning has considerable potential in the context of postsecondary admissions. In complying with existing fourteenth-amendment jurisprudence, admissions officers already rely on proxies for applicants’ race. Doing so checks self-serving behavior and better captures the fluidity of race in modern America.
The (Non-)Right to Sex, University of Miami Law Review, which is forthcoming in 2015
What is the relationship between the battle for marriage equality and the expansion of sexual liberty? Some see access to marriage as a quintessentially progressive project — the recognition of the equality and dignity of gay and lesbian couples. For others, promoting marriage or marital-like relationships reinforces bias against individuals making alternative intimate decisions. With powerful policy arguments on either side, there appears to be no clear way to advance the discussion.

By telling the lost story of efforts to expand sexual liberty in the 1960s and 1970s, the Article offers a new way into the debate. The marriage equality struggle figures centrally in a longer narrative about the omission of sex — rather than committed relationships or marriage — from the constitutional canon. By recapturing this narrative, we can identify powerful doctrinal constraints confronting the contemporary marriage equality movement. As importantly, the story of the non-right to sex provides a compelling historical parallel to the contemporary marriage equality movement. The mistakes of past decades illuminate the dangers inherent in contemporary marriage-equality tactics.

The Article begins the story of the non-right to sex in the 1960s and 1970s, when groups like the ACLU and NAACP confronted a backlash against a perceived increase in illegitimacy rates. Some attorneys and activists viewed the illegitimacy backlash as evidence of the intersectionality of race discrimination, sex discrimination, and the denial of sexual freedom. Often, however, feminists and civil rights attorneys presented themselves as defenders of conventional sexual morality, arguing that the reform of laws on illegitimacy, contraception, and abortion would strengthen or leave intact traditional sexual norms. These arguments helped progressives achieve incremental progress. At the same time, progressives inadvertantly reinforced the State’s ability to regulate sexual behavior.

For the marriage equality movement, this history offers a cautionary tale. Efforts to achieve incremental social and legal change have obvious advantages: these strategies appeal to cautious courts and reduce the odds of backlash. At the same time, as the materials considered here make plain, incremental strategies can strengthen the status quo. In the 1960s and 1970s, progressives paid lip service to the evils of illicit sex in an effort to chip away gradually at discrimination against minorities, sexual dissenters, and women. This tactic had unexpected consequences, since cause attorneys helped to entrench an existing intimate hierarchy. As this history counsels, incremental litigation strategies adopted by the marriage equality movement may have a profound cost of their own.
Abortion and the Constitutional Right (Not) to Procreate, University of Richmond Law Review 8 (2014): 1263
With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance.

This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.

This article uses the legal history of struggle over spousal consent abortion restrictions as a new way into the debate about the relationship between ART and existing reproductive rights. Such laws would require women to notify or obtain consent from their husbands before a doctor can perform an abortion. Scholars use spousal-consultation laws to illustrate the sex stereotypes supposedly underlying all abortion restrictions. This article tells a far more complex story. When feminists and pro-lifers battled about spousal consent in the 1970s, they wrestled with many of the questions motivating current battles about ART: Do women enjoy a unique role in child-rearing and childbearing? Does gestation, caretaking, or a genetic connection explain the decision-making power conferred on women in the context of reproduction? How could feminists reconcile demands that men perform a greater share of child-rearing with arguments that women should have the final decision on reproductive matters? By reexamining the history of the consent wars, we can gain valuable perspective on what can go right -- and wrong -- when we forge a jurisprudence based on the relationship between genetic, gestational, and functional parenthood.

The consent wars helped drive a wedge between feminist sex-equality arguments -- which challenged sex stereotypes and reproductive rights law -- which partly relied on similar generalizations about sex roles. Throughout the 1960s and 1970s, legal feminists pushed new laws on publicly funded child care and pregnancy discrimination in a quest to assign more caretaking responsibility to men and to the State. Feminists believed that separating women's gestational and functional parenthood would help root out damaging sex stereotypes and dramatically expand women's role in the political, economic, and social spheres.

The consent wars flipped this project on its head: for both strategic and ideological reasons, feminists assumed a more traditional vision of the roles, rights, and responsibilities of both mothers and fathers. Feminists argued that women had a unique role not only in the context of gestation but also in the context of child-rearing. While these contentions strengthened the constitutional case against spousal consent laws, they were unnecessary. Without contradicting their support for equal parenting responsibilities, feminists could have stressed that the law did not treat the fetus as a child. Consequently, a man's interest in equal parenting might have looked quite different before, rather than after, viability. Moreover, conflating gestational and functional parenthood had damaging, unintended consequences, entrenching sex stereotypes about gender roles at the heart of abortion jurisprudence.

In chronicling the consent wars, we can gain a better understanding of the proper relationship between ART and the existing constitutional framework governing reproduction. As feminists recognized in the 1960s and 1970s, pregnancy -- not the burdens of caretaking or genetic parenthood -- puts women in a unique biological and social position. In the 1970s, by reading a broader understanding of women's disproportionate share of parenting into Roe v. Wade, feminists inadvertently created an opening for courts to fall back on deeply rooted stereotypes about women's role in the home. To avoid this trap in ART cases, we should read abortion jurisprudence as standing for the connection between sex equality and women's gestational role. The consent wars powerfully demonstrate the costs feminists can face when they fail to unbundle women's genetic, gestational, and functional parenthood.

Conversely, ART jurisprudence spotlights the path not taken by feminists during the consent wars. Separating the strands of parental rights allows us to define women's equal citizenship concerns in abortion with greater precision. Because only women can carry pregnancies to term, abortion bans necessarily implicate women's interest in equal treatment, regardless of who takes on caretaking responsibilities after childbirth. Equally important, the injuries associated with unwanted pregnancy itself -- to bodily integrity, dignity, and autonomy -- can justify a woman's right to abortion regardless of who assumes caretaking responsibilities later in life.

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