Tuesday, November 17, 2009

Tani on ASLH Panel: Gender, Soldiering, and Citizenship in the 20th Century United States

This post on the 2009 American Society for Legal History conference comes from Karen Tani, the Sharswood Fellow in Law and History, University of Pennsylvania:

Among the many offerings at this year’s meeting of the American Society for Legal History was a Friday morning panel on “Gender, Soldiering, and Citizenship in the Twentieth Century United States,” chaired by Jill Hasday (University of Minnesota). The three papers spanned almost the entire twentieth century, but clustered around similar themes: the shifting but persistent connection between warfare and welfare; the deeply gendered nature of American social welfare provision; and the difficulties that arise when special categories of citizens – women, soldiers, racial minorities – make competing claims on the polity.

The first panelist, Rebecca Rix (Princeton University), presented “‘No Longer the Men of Lexington’: Unfit Draftees and the Changing Meaning of ‘the General Welfare,’” which is a piece of a book project. Rix opened her talk by referencing the mythic “Men of Lexington”: skilled citizen-soldiers capable of rallying to the nation’s defense at a moment’s notice. The Selective Service Act (1917) – or rather the medical evaluations that resulted from it – revealed a very different male population: four fifths of those evaluated had some “defect”; one third were deemed unfit for service. This revelation shocked the War Department and helped trigger a wave of new social welfare legislation. Women and children were key beneficiaries, Rix explained, because policymakers traced draftee defects to the care that men received in their infancy and youth. But Rix’s larger argument hinged less on particular programs, which came and went, and more on policymakers’ increasingly capacious definition of the “general welfare.” Rix concluded by suggesting that the government’s (and in particular, the federal government’s) expansive use of the police power during and after World War I established a crucial element of modern liberalism.

Melissa Murray (University of California, Berkeley) was unable to present her paper, “‘Made with Men in Mind’: Veterans’ Benefits, Gender, and Social Policy,” but Laura Kalman (University of California, Santa Barbara) gave it a lively reading. The paper revolved around one central insight: veterans’ benefits and preferences did not just benefit and prefer men: they entrenched (deliberately, Murray argued) traditional understandings of manhood and womanhood. Men were protectors and providers; women were dependents. Thus when women were allowed to serve in the military, they were tasked with work that “supported” male soldiers; when women were recruited into the industrial work force, government spokespersons took pains to portray that work as within the domestic sphere; and when it was time to reward veterans for their service, the rewards reinforced the notion that male veterans were returning as workers (and female veterans were not). This last point, Kalman noted, bears emphasis, as it has not been the focus of other studies of the GI Bill: the drafters of the Bill were deeply concerned with fueling and stabilizing the postwar economy; veterans’ benefits (monthly stipends, support of education) were a hedge against unemployment.

Serena Mayeri (University of Pennsylvania) rounded out the panel with a paper titled “Preferred Veterans, Prison Guards, and Pregnant Workers: Attacking ‘Disparate Impact’ in the 1970s.” The paper, which focused on how legal challenges to veterans’ preferences fit with feminist legal campaigns, is part of Mayeri’s ongoing book project, Reasoning from Race: Legal Feminism in the Civil Rights Era. Mayeri began by identifying an important shift in feminist legal strategy in the mid-1970s: from an “anti-differentiation” model (based on the notion that like should be treated alike) to a “disparate impact” model (based on the idea that “neutral” policies and practices should be deemed invalid when they have a disparate effect on particular groups). Feminists believed that the disparate impact theory held particular promise in the pregnancy context. Thus Mayeri spent a few minutes discussing the legal trail that began with Geduldig v. Aiello (1974) and ended with the Pregnancy Discrimination Act (1978). But Mayeri focused her presentation on Personnel Administrator of Massachusetts v. Feeney (1979), through which feminists challenged a Massachusetts veterans’ preference law that disparately impacted women. The holding in Feeney is well known: the Court upheld the law because its consequences for women, though foreseeable, did not indicate intent to discriminate. Mayeri illuminated a less well-known aspect of the decision: veterans were not, at least for some justices, the overriding concern. Justice Powell in particular was unsympathetic to the Massachusetts law. But he worried about the race/sex analogy that was by the late 1970s embedded in the case law; he understood that because of the analogy a decision for Feeney would undercut the Court’s decision in Washington v. Davis (1976) (refusing to recognize disparate impact liability in a failure-to-hire equal protection case brought by two African Americans). Mayeri’s overarching point was that analogizing sex to race, as a feminist legal strategy, had limits and risks; these came to the fore when the interests of women, African Americans, and other special categories of citizens collided.

Gretchen Ritter (University of Texas) gave thoughtful comments on each paper and offered several provocative observations about the panel as a whole. For example, she noted the clear nexus between social welfare and military service; that nexus meant that during and after war, social welfare provision could expand – but at what price? At whose cost? Ritter also wondered about the potential of the veterans’ preference tradition, which she described as one of inclusion and enablement. This tradition lives on in the Americans with Disabilities Act and in affirmative action policies. Why can’t we seem to develop this model further?

In the time that remained the panel took questions from the audience. The discussion included observations about the gendered nature of American warfare, the important distinction between veterans’ preferences and veterans’ benefits, and the implications of Supreme Court cases that appear to sanction affirmative action on behalf of women (even as the Court edges closer to a “colorblindness” standard in cases involving race).

Women pilots in WW II