Linda L. Berger

The Necessity of Multi-Stranded Feminist Judicial Opinions

This article examines and evaluates Feminist Judgments of Aotearoa New Zealand, Te Rino: A Two Stranded Rope, the latest published book in the growing collection of global feminist judgments projec...

Frontiero v. Richardson, 411 U.S. 677 (1973)

INTRODUCTION “Hot damn!” These were the words self-described “flaming feminist” Sharron Frontiero joyously uttered when she learned that the U.S. Supreme Courts decision in her landmark 1973 case, Frontiero v. Richardson , would allow female military personnel to receive the same dependency benefits for their husbands as their male counterparts were already getting for their wives. Frontiero was a significant victory for the feminist movement, though not an uncomplicated one. The number of laws on the books in the early 1970s reflecting and reinforcing traditional gender roles was dizzying, and courts – including the U.S. Supreme Court – routinely upheld them. Frontiero was only the second case in which the Court invoked equal protection principles to hold unconstitutional a law that discriminated against women. It was also the first case Ruth Bader Ginsburg argued before the Court, helping solidify her role as “the leading Supreme Court litigator for gender equality” in the 1970s. The original decision in Frontiero marks the closest the Court has come to recognizing sex as a suspect class – Ginsburgs ultimate goal in a creative and sometimes controversial litigation strategy. But because Justice Brennans opinion establishing strict scrutiny review for sex-based classifications garnered only a plurality of the Court, Frontiero left behind a messy legacy. In her feminist revision, Professor Dara Purvis, writing as Justice Purvis, gives Ginsburg the strict scrutiny majority for which she strategized so long and hard. Purviss opinion is grounded in a social constructionist vision of feminism that views all gender stereotypes – including those found in “policies that seemingly honor womens contributions” – as harmful. What is unclear is whether Purviss feminist judgment, had it been the actual majority opinion, could have done more to mitigate the potential dangers of strict scrutiny seen in recent years. GINSBURGs TEMPERATURE-RISING STRUGGLE FOR STRICT SCRUTINY In reflecting on her time as a gender equality litigator in the 1970s, Justice Ginsburg noted that “[o]ur starting place was not the same as that of advocates” fighting race discrimination because policies treating the sexes differently were often regarded “as operating benignly in womens favor.” Lawmakers and judges were “overwhelmingly white, well-heeled, and male,” and “generally considered themselves good husband[s] and fathers.

United States v. Morrison, 529 U.S. 598 (2000)

INTRODUCTION United States v. Morrison involved the constitutionality of the private cause of action authorized by the Violence Against Women Act (VAWA). The District Court and the Fourth Circuit en banc dismissed Christy Brzonkalas complaint against James Crawford, Antonio Morrison, and Virginia Polytechnic Institution. The U.S. Supreme Court affirmed the dismissal and held that: (1) VAWAs private cause of action exceeded congressional authority under Article Is Commerce Clause because gender-motivated violence was a noneconomic local activity that did not substantially affect interstate commerce; and (2) the Fourteenth Amendments Enforcement Clause did not allow remedial measures against private actors. Justices Souter and Breyer wrote separate dissents. Both dissenters argued that gender-motivated violence was well within the purview of the commerce power, and neither discussed the validity of VAWAs private right of action under the enforcement power. Professor Anibal Rosario Lebron, writing as a dissenting Justice, details the facts in Morrison quite differently than do the original majority and dissenting opinions. For example, Chief Justice Rehnquists majority opinion briefly and succinctly described Crawford and Morrisons alleged attack on Brzonkala as an “assault[]” and “repeated[] rape[].” Morrisons debasing remarks about what he liked to do with women (delivered some months after the alleged rape) were vaguely described as “vulgar remarks that cannot fail to shock and offend.” The dissenting opinions authored by Justices Souter and Breyer did not mention the terms rape or assault in relation to Brzonkala, nor did the dissenters refer to Morrisons post-attack comments. Rosario Lebrons narrative explicitly adopts a situated perspective. Rosario Lebron challenges neutrality as the proper tone of judicial opinions, as well as the concept that judicial language is somehow disconnected from patriarchy. Rosario Lebron intentionally excludes a discussion of Brzonkalas race and the race of her alleged attackers, believing that such a discussion detracts from how gender-motivated violence perpetuates both physical and economic dominance over women. Nor does Rosario Lebron mention that Brzonkala had been drinking prior to the alleged rape, believing that to do so would constitute re-victimization. Rosario Lebrons personalization of Brzonkalas story offers more than a strict and legalistic narrative of her “encounter” with Crawford and Morrison.

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)

INTRODUCTION Meritor v. Vinson marks the first time the U.S. Supreme Court recognized hostile work environment sexual harassment as a violation of Title VII. It held that sexual harassment is not limited to quid pro quo harassment, where a woman is fired or financially punished for refusing a supervisors sexual demands. Sexual harassment that is severe or pervasive enough to alter the conditions of employment and create an abusive working environment also violates Title VII. Although feminists welcomed Meritors recognition of quid pro quo and hostile environment sexual harassment, the decision written by Justice Rehnquist has proved problematic for plaintiffs. Professor Angela Onwuachi-Willig, writing as Justice Onwuachi-Willig, rectifies many of these problems in her feminist judgment. First, she brings race and its historical intersection with gender and rape to the fore. Rehnquist does not acknowledge that the complainant and her alleged harasser were African-American nor how that might have shaped Mechelle Vinsons working environment or the responses of the various courts that addressed her case. Second, Onwuachi-Willig holds that sexual harassment is actionable if it unreasonably interferes with the work environment, creates a hostile or intimidating environment, or preserves sex segregation in the workplace. This is a significant departure from the majority rule, which required the harassment to be “severe or pervasive” and “unwelcome,” thus creating an “abusive working environment.” Although some lower courts later adopted a reasonable person standard for evaluating harassment claims, Onwuachi-Willig holds they are to be evaluated from the perspective of a reasonable victim in the complainants shoes (here, an African-American woman) because the traditional standard can perpetuate dominant or white male norms about appropriate behavior in the workplace. Third, Justice Onwuachi-Willig holds that a complainants manner of dress is not relevant, shifting the focus from the complainants “voluntary” participation in the alleged harassment to the defendants conduct and the impact of that conduct on the working environment. Finally, in a bold move, Onwuachi-Willig holds employers strictly liable for hostile environment harassment of subordinate employees even without any form of notice. THE U.S. SUPREME COURT DECISION In the original majority decision, the Court addressed three main issues. First, it held that quid pro quo and hostile environment sexual harassment violate Title VII.

City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702 (1978)

INTRODUCTION Marie Manhart, a former employee of the City of Los Angeles Department of Water and Power, brought a class action lawsuit on behalf of herself and current and former employees, challenging the Departments requirement that female employees contribute approximately 15 percent more than male employees to the Departments retirement plan. The Department used sex-based actuarial tables to classify employees and determine the amount of an employees contribution. The plaintiffs alleged that because identically situated male employees paid less, the policy constituted discrimination based on sex under Title VII of the Civil Rights Act of 1964. The plaintiffs argued that the Department impermissibly classified employees by sex and not as individuals to determine the amount of the contributions. The Department defended the differential treatment, asserting that women on average had longer life expectancies than men. It argued that Title VII did not apply because actuarial longevity factor was a “factor other than the [employees] sex.” In the original majority opinion written by Justice Stevens, the U.S. Supreme Court agreed with the lower courts that the employer discriminated by reducing the take-home pay of women. The Court found retroactive relief inappropriate, however, because of the potential impact on the employer and economy. In an opinion concurring in part and dissenting in part, Justice Marshall reasoned that the Manhart plaintiffs were wrongly denied restitution, a refund of the wages improperly deducted from their take-home pay. Relying on the foundational case Albemarle Paper Co. v. Moody, Justice Marshall posited that Title VII authorized the district court to fashion appropriate relief, with a presumption favoring retroactive relief. Examining the record for clearly erroneous factual findings and abuse of discretion, Justice Marshall concluded that this presumption in favor of retroactive relief was not overcome. THE FEMINIST JUDGMENT In the Manhart feminist judgment, a re-imagined majority opinion, Professor Tracy Thomas, writing as Justice Thomas, explores how legal systems may operate to economically oppress women. The judgment implies that sex- or gender-based discrimination is systematic, patriarchal, and hierarchical, effectively suppressing and subordinating women. This is especially true when assumptions and stereotypes go unquestioned. From Thomass opinion, one infers her belief that failure to award damages, as the original Manhart opinion did, operates to validate the legal and economic marginalization of female workers. Advancing gender equality, therefore, required invalidating the Departments classification and awarding damages.

Loving v. Virginia, 388 U.S. 1 (1967)

INTRODUCTION Loving v. Virginia , perhaps the most aptly named case in the history of the U.S. Supreme Court, is often celebrated as a landmark decision that helped to shape our country by eradicating long-standing, discriminatory laws that barred interracial marriage. Based on Chief Justice Earl Warrens recognition that these laws violated the central meaning of the Equal Protection Clause, the U.S. Supreme Court ended a nearly 300-year history prohibiting interracial marriage in various states. Although some scholars believe that the decision was too little, too late, there is no disagreement that the Loving opinion marked a major shift in the legal recognition of interracial marriage. Professor Kevin Noble Maillard memorialized this important moment: “In the collective memory of the United States, mixed race did not exist until 1967. By giving legal recognition to interracial marriage, Loving v. Virginia established a new context for racial possibilities in the United States.” The feminist judgment in Loving weaves together a heroic tale of love juxtaposed against long-standing definitions of marriage that were shaped by White supremacy and patriarchy. THE STORY OF MILDRED AND RICHARD LOVING Loving s outcome, striking down Virginias anti-miscegenation law, is well known, but the details of the personal story and the long, difficult struggle leading up to the U.S. Supreme Courts decision are often lost. Mildred Delores Jeter, a Black woman, and Richard Loving, a White man, married on June 2, 1958. Mildred, who was called “Stringbean” or “Bean,” and Richard had known each other for most of their lives, as their families lived and worked in close proximity. Although the couple lived in Virginia, they were married in Washington, D.C. About a month after they were married, Caroline County Sheriff R. Garnett Brooks entered the Lovings’ home in the middle of the night and arrested the couple for violating Virginias ban on interracial marriage. As a result of their arrests, convictions, and impending punishment of jail or banishment, the couple fled from the only home they had ever known to live in Washington, D.C.

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)

INTRODUCTION In Oncale v. Sundowner Offshore Services, Inc ., the U.S. Supreme Court decided that same-sex sexual harassment was actionable as a violation of Title VII of the Civil Rights Act of 1964. Under Title VII, an employer cannot take an adverse employment action “because of sex.” In Oncale , the harassment included physical assaults of a sexual nature, including threatened rape. Importantly, the text of Title VII does not include “sexual orientation” or “gender identity” in its list of protected classes that includes race, color, religion, and national origin, in addition to sex. As important as the Oncale ruling is for plaintiffs subjected to same-sex sexual harassment, it is also problematic. For instance, the U.S. Supreme Court did not include discrimination based on sexual orientation and gender identity as discrimination because of sex. In addition, many courts have interpreted the Courts opinion to limit the theories by which a plaintiff could prove same-sex discrimination to those specifically enumerated by the Court, thereby precluding other theories, such as gender role policing. The feminist judgment, by Professor Ann McGinley writing as Justice McGinley, seeks to correct these and other limitations of the original opinion. THE U.S. SUPREME COURT DECISION The facts of Oncale are set out in detail in the feminist judgment and need not be reiterated here. Writing for the U.S. Supreme Court, Justice Scalia provided in the original opinion only limited facts, citing the need for “brevity and dignity.” The facts of the majority thus state little more than that during his employment at Sundowner Offshore Inc., Oncale was forcibly subjected to “sex-related, humiliating actions” by male supervisors and coworkers. On the legal issue, the Court began by holding that “nothing in Title VII necessarily bars a claim of discrimination ‘because of … sex’ merely because the plaintiff and the defendant … are of the same sex.” The Court enumerated three ways that a plaintiff could prove that same-sex harassment was because of sex and in violation of Title VII. First, the plaintiff could raise the inference of sex discrimination if the harasser was homosexual, making the harassment motivated by desire.

Dothard v. Rawlinson, 433 U.S. 321 (1977)

INTRODUCTION Dothard v. Rawlinson is among the most important early cases applying Title VII of the Civil Rights Act of 1964 to gender. It was the first case that considered whether a seemingly neutral job requirement like height and weight could violate Title VII if it had a disparate impact on women in the workplace. It was also the first case to address Title VIIs bona fide occupational qualification (“BFOQ”), which allows employers to use sex in employment decisions if it is “reasonabl[y] necessary … to the normal operation of that business or enterprise.” Dothard involved employment in Alabamas state correctional facilities. The female plaintiffs in Dothard argued that the prisons height and weight requirements created a disparate impact by excluding 41 percent of women and only 1 percent of men. They also challenged the prisons categorical exclusion of women from contact positions, arguing that maleness was not a BFOQ for employment in Alabamas male prisons. The U.S. Supreme Court found that Alabamas height and weight requirements violated Title VII because the state offered no evidence that the requirements were necessary to the job. The Court found, however, that sex was a BFOQ permitting Alabama to exclude women from contact positions in its maximum-security prisons. Acknowledging that its reasoning echoed the “romantic paternalism” that it explicitly forbade in Frontiero v. Richardson , the Court nonetheless balked at permitting women to act as prison guards. Describing the mens maximum security prison as a “jungle atmosphere,” the Court reasoned that female staffs “very womanhood” would undermine security in the prison and might incite sexual assault by prisoners “deprived of a normal heterosexual environment.” The feminist judgment by Professor Maria Ontiveros, writing as Justice Ontiveros, challenges the legal and logical underpinnings of the Courts opinion. She criticizes the Courts disparate impact analysis for not providing adequate guidance when a challenged job requirement, like height and weight, is a proxy for sex. She is even more critical of the Courts BFOQ analysis, finding that it enshrines sexist stereotypes of women as the cause of sexual assault, permits de facto sex segregation in the workplace, and limits the self-determination of female workers. Ontiveross opinion illuminates the sexism that is codified in Title VIIs BFOQ and reified in U.S.