Yearly Archives: 2016
Dec 12, 2016 Cyra Akila Choudhury
Since the 2003 Lawrence v. Texas (539 U.S. 558) decision in which the United States Supreme Court overruled the criminalization of private homosexual conduct in the United States, the argument that the ruling would lead to same-sex marriage and also to the recognition of polygamous marriage has been made with regularity by Supreme Court Justices and law professors. Most recently, in the 2015 Obergefell v. Hodges decision, the Court proved Justice Scalia right and extended the fundamental right to marry to same-sex partners. (Obergefell v. Hodges, 576 U.S. __ (2015)). In his dissent in Obergefell, Justice Roberts reprised the Scalian slippery slope argument and asked whether “States may retain the definition of marriage as a union of two people….Indeed from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.” (Id. (Roberts, J., dissenting).) Invariably, when asked to legally justify the prohibition of polygamy against constitutional challenge, proponents of exclusively monogamous marriage rely on a host familiar Orientalist tropes as well as assertions of social dangers with little empirical proof.
Regardless of whether one agrees with the practice of plural marriage or same-sex marriage as a moral matter, it has become a requirement in the marriage cases, at least from Perry, Windsor, and now Obergefell, that objections to legalization be based on logical, discernible evidence rather than vague suppositions or, worse, stereotypes. Professor Jonathan Turley’s article The Loadstone Rock: The Role of Harm in the Criminalization of Plural Unions examines and challenges the proffered justifications for continuing the criminalization of polygamy. Using two cases, one from Canada that he refers to as “The Bountiful” (Reference re: Section 293 of the Criminal Code of Can., 2011 BCSC 1588), and Brown v. Buhman ((The decision in Brown was subsequently vacated for mootness by the United States Federal Court of Appeals for the Tenth Circuit. Brown v. Buhman, No. 14-4117 (April 11, 2016).)) from the United States (947 F. Supp. 2d. 1170 (D. Utah 2013)), Turley argues that post-Lawrence, the ability to show harm from specifically consensual, adult plural marriages is very difficult if not impossible.
The article begins with a brief overview of the Canadian reference and the Brown case. The laws being questioned in both cases are remarkably similar, which makes for an excellent comparative analysis. In both contexts, though the law affects other communities, the state’s criminal prohibition is directed at Mormon polygyny. The similarity notwithstanding, the different analyses of harm undertaken by the courts result in polar opposite outcomes: The Brown court found that Utah’s ban on informal polygamous unions in which the parties never seek state licensing or recognition does not implicate harms that are compelling enough for the state to invade consenting adults’ privacy. Women and children are protected by other laws like domestic violence and child abuse laws, and these harms cannot be assumed as necessarily arising in all polygamous unions to ban their informal practice. The Canadian court, on the other hand, was persuaded by expert testimony of significant harm arising from polygamy, particularly to women and children, to justify a criminal ban of the practice.
While the discussion of these cases is fascinating particularly for those of us who teach comparative family law, the real contribution of the article is in the challenge to the use of harm in continuing the ban on polygamy. Turley suggests that the harm principle as articulated by Utilitarian philosophers and specifically John Stuart Mill was once a favored argument of conservative Liberal supporters of privacy. Mill’s harm principle restricted government regulation only to those actions that directly harmed others, therefore removing consensual acts from its purview. Turley argues that the way that this principle has been deployed in some recent feminist scholarship has begun to take an illiberal turn reminiscent of an entirely different philosophical tradition—that of Lord Patrick Devlin. Turley argues that these feminist uses of the harm principle to argue that polygamy results in social rather than individual harm forces a particular choice upon all citizens resulting in what he calls “compulsive liberalism,” “where harm is defined broadly to subsume consensual acts that foster discrimination or stereotypes.” (P. 3.)
Resting on moral conceptions of harm, in short, returns us circularly to illiberal theories like that of Devlin, who argued that moral harm alone was a sufficient basis for state action such as criminalization, in opposition to the Millian harm principle. Turley asserts that compulsive liberalism is eroding some of the most fundamental rights of individuals in a liberal society, tracing this trend from the early argument made by Catherine MacKinnon that pornography always and inevitably subjugates women to current attempts to regulate speech and expression via hate-speech legislation and attempts to protect religious sentiments. One might add the proscription against holocaust denial, activism for Palestinian rights, and regulation of Islamic dress to Turley’s examples indicating that it is not only liberal feminists engaging in this sort of compulsory liberalism. Nevertheless, Turley argues persuasively that illiberal regulation of free speech based on conceptions of societal harm—perhaps even espoused as a threat to the public order—reintroduces morality alone as an adequate basis for criminal regulation.
The polygamy cases, Turley argues, “fall on the very fault line between compulsive liberalism and libertarian theories over the function of criminal sanctions.” (P. 1943.) Examining the expert testimony on harm supporting continued criminalization in the Bountiful and Brown cases, Turley asserts that in Bountiful there was a willingness to rely on theoretical claims of social harm even when the unions were “consensual, and reveal[ed] no cognizable harm to the participants. It was the threat of its very existence to the fabric of marriage as an institution that [Chief Justice] Bauman saw as a credible basis for criminal sanctions.” (P. 1944.) The possible harm to women, children, and the institution of monogamous marriage sounds very much like the harms offered by opponents of same-sex marriage. Moreover, they resuscitate Lord Devlin’s argument that the law does not protect individuals but society.
Even if we do not espouse the view that all the law should do is protect individuals from other individuals or from an overreaching state consonant with Libertarianism, Turley’s exploration of the expert testimony raises the question of whether these are, indeed, harms to society causally related to the polygamous structure or form of marriage. The reliance on harm to women in the face of consent and, indeed, choice, raises questions whether feminist opponents of polygamy value autonomy even when they do not agree with its ultimate outcome. Can women choose polygamy freely? Can women choose to dress modestly? Or are these choices always compelled by the invisible hand of the patriarchy from which the only escapes are those authorized by liberal feminist orthodoxy? Turley rightly points to a conundrum at the heart of this kind of feminist project: the possibility that freedom will not look like what the majority wants and will reflect norms that are not typically white, upper-middle class, and European in origin.
Ultimately, Turley challenges the idea that a polygamous marriage treated on equal terms with a monogamous marriage is a threat to women’s equality. It is questionable that a form of marriage is inherently unequal. As I have argued, monogamous marriage historically suffered from serious gender inequality until the mid-twentieth century and in many respects continues to do so. ((See generally, Cyra Akila Choudhury, Between Tradition and Progress: A Comparative Perspective on Polygamy in the United States and India, 83 U. Colo. L. Rev. 101 (2012).)) Abuses within these marriages were tolerated with equanimity by the law. Only after the women’s movement of the 1960s onwards have we been able to rehabilitate monogamy into a more egalitarian form through legal enactments like domestic violence, child abuse, and age of consent laws. Even if we focus on polygyny in its more extreme forms, there are means by which we can legally structure these marriages to distribute the rights and obligations and, indeed, even the legal status of marital partners, more equally among all the spouses. And certainly, as Turley points out, family structures with multiple partners are not restricted to polygyny but include polyamory and polyandry. These relationships can be egalitarian and cooperative, or not—just as monogamous marriages. But that does not preclude them from being valid choices by both men and women.
The animus that has been directed at polygamy from religious conservatives to liberal feminists has failed to respond to the problem of the disparate treatment of people in plural marriages or those who want to form them (and this is not necessarily always a heterosexual arrangement) from those in monogamous marriages. What is the feminist response to multiple-partner gay or lesbian relationships? Surely these do not implicate gender inequality. As Turley argues most persuasively, using the state’s power to criminalize plural-partner marriages by reducing these to extreme polygyny and then basing the argument for prohibition on moral disgust or fear of prospective societal disintegration alone takes us back to 1950s: it is going backwards and should not be mistaken for progress towards greater equality and freedom.
Cite as: Cyra Akila Choudhury,
Liberty, Equality, Polygamy?, JOTWELL
(December 12, 2016) (reviewing Jonathan Turley,
The Loadstone Rock: The Role of Harm in the Criminalization of Plural Unions 64
Emory L.J. 1905 (2015)),
https://equality.jotwell.com/liberty-equality-polygamy/.
Nov 11, 2016 Toni Williams
Inclusion, Exclusion, and the “New” Economic Inequality by Olatunde C.A. Johnson (hereinafter The “New” Economic Inequality) addresses key questions that have arisen in this difficult era of austerity, retrenchment, and increased economic insecurity in rich countries. These questions include: where does racial inequality fit in the high-profile discourse about the (re)discovery of economic inequality? And, in a world of extreme and growing economic inequality, what kinds of inclusionary practices contribute to remedying racial inequality?
I read this article because I’m working on a research project about the role of law in implementing inclusionary practices. This project concerns inclusionary practices in Europe and Latin America, while The “New” Economic Inequality focuses on the legal customs, traditions, and remedial instruments of the United States. Fortunately, the article’s critical analyses of the limitations of historic “remedies” for racial inequalities in the U.S. and of the absence of race from much of the contemporary discourses of economic inequality are of broader significance, as are the article’s insights into the importance of place-centred remedies to struggles for racial equality.
A comprehensive introduction to the article contextualises and sketches the contours of the “new” economic inequality as it has been elaborated in recent academic and popular literatures and points to the uneasy fit of racial inequality within this discourse. The obduracy of racial inequality in the United States – as evidenced by social and economic measures including wealth, criminalisation, security, health, education, and racialized unequal access to other key public and private goods – does not comport well with the narrative of economic inequality as a “new” phenomenon. That narrative positions economic inequality as a radical change that has recently diminished the lifestyles and life chances of an almost universal middle class, the former beneficiaries of the credit-fuelled consumer society of the mid-twentieth century. If the problem of inequality that dominates contemporary social policy conceptualises economic inequality as a new situation that ruptures the fabric of an imagined time/space of equality and social mobility, where does that leave racial inequality, an aspect of American life that positioned Black and African-Americans as a perpetually excluded “other,” juxtaposed against an ostensibly universal norm of equality?
Johnson eschews the idea of subsuming contemporary racial inequality within some notion of the economy as generating a shared, “pan-racial” experience of structural inequity. Instead, The “New” Economic Inequality explores the historical-spatial underpinnings of racial inequality and the struggles to stop it, focusing in particular on the often complex and tense relationship between inclusion (anti-discrimination) claims based on race, gender, and other grounds of historic exclusion, and the sedimented distributional entitlements associated with the “democracy of opportunity” tradition in the U.S.
Part I of the article outlines how concepts of space and place illuminate the processes and consequences of exclusion through class, race, and ethnicity and the implications of such exclusion for social (im)mobility. It draws on key studies of the impact of residential segregation by class and race on intergenerational (im)mobility. Relying on Patrick Sharkey’s work, for example, The “New” Economic Inequality documents (i) the huge and persistent differences in neighbourhood poverty experienced by low-income white and African-American residents of major U.S. cities, (ii) the significant impact this differential has had on access to publicly provided goods such as education and private market-based opportunities to secure good jobs and accumulate wealth, and (iii) the enduring, multigenerational effects of these differences.
Part II of the article then reviews different legal instruments for tackling unequal places and remedying the opportunity deficits they create. The revival of integration litigation based on fair housing law is an interesting development, especially in the wake of the Supreme Court’s recent holding that racial integration is a core purpose of the Fair Housing Act and that the legislation supports disparate impact claims. A more intriguing aspect of the remedies discussion is Johnson’s survey and assessment of non-litigation strategies to address inequalities of place and race. These strategies include the use of governmental programming and spending regulations to require agencies and grant recipients actively to promote fair housing and sustainable communities. But perhaps the most interesting alternative to litigation discussed in the article is the “community benefits agreement” (CBA), an example of a regulatory compact through which the plans of developers and investors to (re)manufacture urban space are made conditional on agreements with local community coalitions and governmental organisations (municipalities, economic development agencies) to deliver inclusionary benefits such as decent wages, good jobs, affordable housing, sustainable environmental conditions, parks, and schools.
Johnson is careful not to suggest that the CBA offers much more than a limited intervention, suitable only in some circumstances, for the legacies — and enduring problems – of economic and racial exclusion. But her analysis does highlight a potentially exciting dimension of this type of intervention. As Johnson writes: “what is novel as a regulatory approach … is the shift … to a framework in which redistributive demands are made of private power and public goods. The aspiration of the CBA framework is not simply inclusion in structures of opportunity presumed to be operating correctly, but the remaking of the terms of how those structural arrangements distribute opportunity.” (P. 1662.)
Ultimately, what I most liked about Inclusion, Exclusion, and the “New” Economic Inequality is the article’s insistence on the importance of positioning racial, gender, and ethnic inequality as “a necessary disruption of the current interest in economic inequality,” a disruption that demands a rethinking of regulatory regimes and policy practice, a rejection of “narratives of integration” into the failing economic institutions of the early twenty-first century, and a new focus on “remedying the failures of the past, while responding to an evolving economic and racial order.” (P. 1665.)
Oct 14, 2016 Robert Leckey
Do you want that with fries, salad, or a side order of sexual harassment? Kaitlyn Matulewicz’s paper on sexual harassment in the restaurant industry prodded me to look differently at interactions with servers and to reflect more broadly on the burdens placed on those who experience harassment. Her starting point is the legal standard by which, to qualify as sexual harassment, workplace conduct must be objectively “unwelcome” and outside the “normal.” Drawing on interviews with women full-service restaurant workers, Matulewicz argues that the organization of restaurant work makes women vulnerable to enduring sexual harassment. Structuring elements of restaurant work – hiring and dressing practices, the focus on customer service, and the legally approved wage-tip relation – normalize women workers’ subjection to unwanted sexualized experiences.
Matulewicz gives plenty of space to the women interviewed, allowing us to hear their voices. I appreciated her methodological decision not to ask the participants outright whether they had experienced sexual harassment. Instead, she asked them to talk about their work and to describe their interactions with customers, co-workers, and management. That decision was crucial to the project because her participants “often struggled in defining sexual harassment and thinking about their own experiences in relation to it.” (P. 135.) One reason for this struggle is that sexualized conduct is so “normal” in their workplaces – and that the workers need to please their customers.
While the paper’s primary aim is presenting the women’s accounts, Matulewicz connects her inquiry to legal literature on equality, such as work by my colleague Colleen Sheppard, and to legal and sociological research on labour and gender. Matulewicz cites data on the composition of the restaurant industry: women, the young, and visible minorities are disproportionately present in the “front of the house,” serving customers, while men are disproportionately present in the “back of the house,” in the kitchen and the manager’s office.
Matulewicz shows that, in a workplace where sexualized interactions are common, the prevailing legal approach can lay on the recipient of unwanted attention the burden of communicating that conduct is “unwelcome.” That a worker’s remuneration depends on tips, within the client’s discretion, stacks the deck against doing so. Participants reported learning strategies of “laughing it off” to get through the shift.
While the problem isn’t new, this paper pressed me to keep reflecting on the challenges of addressing systemic injustice using complaint-driven mechanisms – ones that work best for egregious individual incidents. I have been thinking of this problem in the context of my service as an assessor for my university’s policy on harassment, sexual harassment, and prohibited discrimination. The paradigm case for such mechanisms probably involves outrageous statements made before witnesses agog, but reliable. Meanwhile, a gamut of conduct and workplace decision-making remains, to use Matulewicz’s term, “more ‘subtle’” and harder to challenge.
A quick Web search tells me that Kaitlyn Matulewicz is a doctoral candidate in the Faculty of Law at the University of Victoria, an organizer with the Retail Action Network in Victoria, and has extensive experience as a server in the food and beverage industry. It’s an impressive combination of scholarly research, activism, and lived experience – and I look forward to reading her work again before long.
Sep 14, 2016 Kim Brooks
John Borrows, Outsider Education: Indigenous Law and Land-Based Learning, 32 Windsor Yearbook on Access to Justice (forthcoming 2016).
John Borrows is a lead actor in the cast that makes it worth being part of the play of life. He’s always thoughtful and interesting; his scholarship thick with love. And I love reading his work.
In Outsider Education he appears as himself – teasing the reader with an introductory paragraph that leaves you wondering if he’s going to make an argument for old school legal education by apprenticeship, then turning the whole thing on its head. It’s not an argument for white men training white men in book-heavy chambers over sherry; it’s a reminder that Indigenous legal education in North America prior to European arrival kicks it even more old school.
Borrows uses this article to remind us that our legal worlds aren’t as narrow as we might have been taught to imagine them. Law can be found in “homes, businesses, hospitals, courts, cities, and rural landscapes.” (P. 3.) He calls for legal education to take root in land and outside contemporary classrooms. If you want an example of how a law professor can take learning “outdoors,” you should read Borrows’ recounting of Professor Doug Harris’ property law class in Part 2.
Part 3 turns to how pedagogies can be developed that reflect and are attentive to Indigenous legal traditions. Perhaps most striking for those uninitiated in the scholarship of Borrows’ is his claim that law is not only what can be found in positive expressions issued by legislatures or courts, but also that it is found in specific Indigenous legal systems, and I would hazard that Borrows would claim even more broadly, in our practices. Most challenging, perhaps, Borrows claims that we should work with students in learning from the earth and develop “land-based literacy” as an explicit goal of legal education.
Turning to Part 4, Borrows recounts the work of law schools like Lakehead Law to integrate law students and legal education with specific First Nations communities, at least in intensive settings if not more generally throughout their legal educations. The illustrations in this section provide an outstanding “go to” for ideas for law professors who care about connecting students with the “practice” of law, and Indigenous law more particularly.
Borrows’ work in this article is emblematic of his scholarship in several ways. First, it is unerringly generous. Borrows’ illustrations are often drawn from experiences outside his own. He highlights and celebrates the efforts of others to build legal education initiatives that help us learn from the land and incorporate Indigenous law into legal education. Second, I confess to being a sucker for good writing, and Borrows is a good writer. Third, the scholarship is mature – it reflects Borrows’ long consideration of these matters.
Ultimately, Outsider Education is an article that persuades. It’s hard to read it and not be convinced that you need to change your way of thinking about your own classes.
Aug 1, 2016 Nick J. Sciullo
There are many reasons to like Jayne Huckerby’s most recent article, and many different ways to incorporate this work into your reading and classes. The article has appeal to feminist, international law, national security, and peace studies. There are several things this article does that I like lots. At its most basic level, it’s a helpful reminder of where feminisms stand on or in relation to the complex terrorism and counter-terrorism terrain. Huckerby takes an exhaustive review of the literature, in the best sense of the phrase, presenting scholars with copious notes detailing discussions in law reviews, peer-reviewed journals of allied fields, books, U.N. and U.S. government reports, and the popular press. Anyone eager to learn more about gender, feminisms, and international law, or to write a syllabus, would do well to comb her notes.
Huckerby’s writing is crisp, giving readers gems of legal thought like:
[A] post-9/11 account of women’s victimhood also tends to focus unduly on women’s experiences at the hands of non-State actors (terrorists), rather than to illuminate ways in which State counter-terrorism policies have also undermined women’s rights or to address a more complicated picture of victimhood whereby women often feel squeezed between terror and anti-terror.
(P. 557) (citations omitted).
This squeezed-ness is an important concept that I hope Huckerby will pursue further. Huckerby goes to great length explaining the ways in which women are often caught in the middle of national security discourse. In some instances, they are subjects of terrorism and anti-terrorism policy as well perpetrators of non-state violence. In others, they are objects to be protected or passive non-agents who aren’t seen as contributing to national security discussions. It calls to mind Martin Heidegger’s geworfenheit, or thrownness. As Heidegger theorized a freedom in the arbitrariness associated with thrownness, so too does Huckerby’s “squeeze” seem to represent a liminal space from which feminist action could take place. That the squeeze between terror and anti-terror is full of frustration and rife with danger indicates its affinity to Heidegger’s thrownness. In this acknowledgement there is the potential for challenging the objective case of squeezedness by interjecting in the squeeze a subjective embrace of the arbitrary, opening the door or moving out of the squeeze and toward political action.
A provocative theorizing of subject positions, a masterful command of source material, and crisp writing are not all Huckerby does (which would be more than enough to make the article an important read). In the long shadow of the September 11, 2001 attacks there’s been comparatively little work on women’s role in both terrorism and counter-terrorism policy. Huckerby intercedes, concluding that we need to focus on four issues, which happen to be interrelated:
the human rights and gender issues at stake in women’s engagement in and support of violent extremism; the impact of violent extremism on women and girls and gender equality; the roles of women and gender equality in countering terrorism and violent extremism, including through women’s participation in security institutions; and the impact of counter-terrorism and countering violent extremism on women and girls.
(P. 590.)
This is an ambitious agenda to be sure. In today’s political climate, feminisms still cause confusion and condemnation from across the political spectrum and indeed occasionally from feminists themselves. This contentiousness is proof positive of the need for more work like Huckerby’s, which helps explain the significance of feminisms to better understanding international law. One wonders what hope there is for sustained and meaningful engagement with feminisms and the rights of women and girls, however, when some people amazingly still understand feminism as a dirty word. Of course something needs to be done, and recent attacks in Turkey, continued violence against Kurds and other ethnic minorities throughout Europe and Asia, and instability in Nigeria all indicate that these issues must be addressed by government leaders, activists, and educators sooner rather than later.
Significantly, Huckerby highlights the tension in “women, peace, and security” efforts. These efforts may benefit women and girls, but often serve national security needs. They may also marginalize human rights perspectives (P. 578). While it may be easy to applaud the U.N. for its focus on women, it would be unhelpful to conclude that the U.N.’s agenda is altruistic or, perhaps, even helpful. Huckerby’s critique should encourage scholars to consider the advantages and disadvantages of these converging focal points.
Lastly, and this may seem a minor point, I was particularly encouraged by Huckerby’s inclusion of girls, who unfairly and quite often are assumed to be included in “women” or “feminisms.” At the international level, it is especially important, given children’s high mortality rates in many countries and inadequate legal protections, to name them. I hope this move will encourage other feminist legal scholars and writers on international law to remember the important and particularly vulnerable role children have in countries across the world.
This is a fine article and a welcome piece of scholarship on feminist legal theory and national security law.
