Gender and Sexual Orientation
Beyond Lawrence: Metaprivacy and Punishment
115 Yale L.J. 1862 (2006) Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty–and communitarian–William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence's jurisprudential legacy. In Part I, it defends the view that Lawrence constitutionalizes what I call "metaprivacy": When societal consensus internalizes a breach of the historical legal divide between particular "conduct" and an associated "status," punishment of that conduct cannot be based on moral approbation alone. The Article then, in Part II, harmonizes this view of Lawrence's legacy with pre-Lawrence constitutional privacy doctrine and theory. Finally, in Part III, the Article applies this understanding of Lawrence interdoctrinally, to capital sentencing. The Article suggests that all that separates the impermissible moral judgments made by a legislature in prohibiting sodomy from the permissible--indeed, almost constitutionally required–moral judgments made during the sentencing phase of a capital trial is a preference for gays over other a priori criminals. Notwithstanding the obvious appeal of permitting such a preference, Lawrence provides no support for it.
Immoral Purposes: Marriage and the Genus of Illicit Sex
115 Yale L.J. 756 (2006) In Lawrence v. Texas, the Supreme Court situates its opinion within the history of laws banning sodomy. Lawrence, however, is also part of another historical narrative: the history of attempts by federal lawmakers and judges to define the relationships among the genus of illicit sex, the genus of licit sex, and marriage. Viewed from this perspective, Lawrence marks the latest intervention in a legal conversation that began when Congress enacted the 1907 Immigration Act and the 1910 Mann Act, each of which prohibited the movement of women across borders--the former, international, the latter, interstate--for "immoral purposes." In the early twentieth century, through these provisions, lawmakers and judges constructed an isomorphic relationship between marriage/nonmarriage and licit sex/illicit sex. The "marriage cure" transported sex across the illicit/licit divide. But courts and legislators came to view these curative powers as a threat to marriage's place in the sociolegal order because individuals used marriage as a tool to evade legal penalties. Thus, they checked the powers of the marriage cure and, in so doing, uncoupled both parts of their original isomorphism. Lawrence represents the culmination of this process: the movement of a sexual relationship across the illicit/licit divide at least in part because it made no claim to marriage. This move reflects the persistent status of marriage as simultaneously powerful in its ability to confer legal privileges and to shield people from the dangers of sexual illicitness, and powerless to protect itself from the taint of those same illicit practices.
Divorcing Marriage from Procreation
114 Yale L.J. 1989 (2005) Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashioned common-lawmaking has been lost. Some have criticized the Goodridge court for its apparently result-oriented approach to the question of whether, consistent with the Massachusetts Constitution, the commonwealth may deny marriage licenses to same-sex couples. Others have defended the decision, both on the court's own rational basis terms and on other grounds, including sex discrimination and substantive due process. This Comment contends that both sides are partly right. I join those commentators who find Goodridge's reasoning flawed but its outcome correct. Where I part ways is in recognizing the vital importance but untapped potential of the Supreme Court's decision in Turner v. Safley. The Turner Court held unconstitutional a Missouri prison regulation denying inmates the right to marry except for "compelling reasons." It is a familiar case, frequently invoked in legal arguments over same-sex marriage to support the proposition that marriage is a fundamental right under our federal constitutional jurisprudence. Too often, however, these arguments miss the totality of what Turner tells us about exactly why marriage is a fundamental right. Because the Turner Court struck down a marriage ban that applied to a population with no legal right to procreate and that provided an exception for pregnancy, the decision undermines any claim that marriage is fundamental because of an inexorable connection to procreation. Part I of this Comment scrutinizes and ultimately rejects the Goodridge court's rational basis analysis. Part II explores the road not taken in Goodridge--the fundamental rights approach of cases such as Loving v. Virginia, Zablocki v. Redhail, and Turner. I argue that for marriage to comport with our fundamental rights jurisprudence, the source of its constitutional definition must be constitutional common law, not individual state statutes. Part III rediscovers Turner as a source of that constitutional definition, concluding that the case is irreconcilable with the view that the possibility of procreation is a necessary affluent of marriage's fundamentality. With Bowers v. Hardwick officially dead, Turner insists that same-sex marriage bans answer to strict, and therefore fatal, scrutiny.
Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts
114 Yale L.J. 1759 (2005) This Note finds that the gender composition of the bench affected federal appellate court outcomes in Title VII sexual harassment and sex discrimination cases in 1999, 2000, and 2001. An empirical study (n = 1666) shows that female judges decided for plaintiffs more often than did male judges. Moreover, male judges on panels with female judges decided for plaintiffs more than twice as often as those on all-male panels. Gender mattered more than ideology in determining outcomes. The Note discusses four explanations for the observed effect of gender on collegial decisionmaking: deliberation, deference, logrolling, and moderation.
"Hostility to the Presence of Women": Why Women Undermine Each Other in the Workplace and the Consequences for Title VII
113 Yale L.J. 1579 (2004) When women undermine and undercut each other, vying for advancement, they are reacting to workplace segregation and low organizational power. Employers must work to integrate workplaces to the best of their abilities, ensuring that women are present in ample numbers at all levels of the organization. They must ensure that women hold positions of authority, supporting them if they are undermined from above or below. When full integration is not possible (as in fields where there are few women in the labor pool), employers must ensure that the women hired are protected from loyalty tests or intentional comparisons to other women that lead to dissociation. Yet responsibility for eradicating workplace segregation lies not only with employers, but with federal courts as well: Female-on-female sexual harassment demands redress under Title VII. Critics may question why Title VII, and harassment law more specifically, should be used to address female-on-female hostility-based harassment. The answer is twofold: Such harassment falls squarely within the scope of Title VII, and its coverage remains true to the statute's purpose of eradicating barriers to advancement for women and minorities. As detailed earlier, the sexual harassment hostile work environment cause of action now covers all sex-based harassment that satisfies the required elements. It has developed to cover behaviors that were not originally envisaged by the drafters of the statute, including same-sex harassment. In the aftermath of Oncale, there is little doubt that hostility-based sex harassment among women would be actionable under Title VII. However, hostile work environment claims should be used against female-on-female hostility not just because they can be, but because doing so helps achieve the original purpose of Title VII. Title VII was created with the intention of reducing segregation and eliminating the barriers that stand in the way of women and minority success in the workplace. Female-on-female hostility-based harassment both results from and perpetuates sex segregation and limited opportunities for women in the workplace. Thus, to the extent that employers structure the workplace in ways that give female employees incentives to compete with and undermine each other, they should be held responsible for violating the mandates of Title VII. Some may argue that Title VII's prohibition of discrimination based on sex was meant to address male supremacy, and that a recognition of female-on-female harassment would be a significant departure from Title VII's goal. However, legal recognition of female-on-female sex harassment does work to combat male supremacy in the workplace. As explained throughout this Note, the exclusion of women from male-dominated jobs and from positions of authority creates hostile relations among women in the workplace. Holding employers liable for the dynamics that they have created among women shifts the focus back to segregation, and thus creates additional incentives for employers to integrate their workplaces and empower female workers. Others may fear that liability will lead employers to regulate female relationships and potentially overdiscipline women workers. Some may even worry that if women do opportunistically undermine each other, recognition of female-on-female harassment will simply give them another tool with which to do so: the ability to "run to daddy" and complain about other women to their bosses. Yet all harassment claims carry the potential for abuse; the fear of unfounded accusations or overexuberant enforcement should not deter courts from extending protection to those deserving of it. A woman experiencing discrimination because of her sex should not remain without recourse merely because the person harassing her is also female. Discrimination based on sex is prohibited by Title VII, and so long as a woman can prove the elements necessary for a successful hostile work environment claim, she should have a cause of action. It would be a welcome change for employers to regulate hostile behaviors among women when many currently refuse to intervene in behaviors "between girls." Women should not have to constantly tiptoe around each other. Instead, they should be aware of the factors that encourage them to compete with each other, recognizing that they can help each other advance and that the success of one can lead to the success of another. With healthy competition, women can push each other to do their best, supporting each other in the face of conditions that would have others thinking that it's every man for himself.
The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action
113 Yale L.J. 939 (2004) Private individuals have long played a key role in enforcing federal rights. Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. In Alexander v. Sandoval, for example, the Court held that there was no private right of action to enforce disparate impact regulations promulgated under Title VI of the Civil Rights Act of 1964. It is unclear, however, whether that decision precluded private rights of action to enforce other regulations promulgated under Title VI and comparable civil rights statutes. Even more significantly, Sandoval left unclear whether, and to what extent, federal agencies can shape private rights of action. While Sandoval's broad language implied that agencies can play only a limited role in creating private rights of action, its holding still allows substantial room for agencies to define those rights. Indeed, a recent split between the Fourth and the Eleventh Circuits illustrates that Sandoval does not necessarily preclude agencies from playing such a role. Although the Eleventh Circuit, in Jackson v. Birmingham Board of Education, held that there was no private right of action to enforce anti-retaliation regulations promulgated under Title IX of the Education Amendments of 1972, the Fourth Circuit, in Peters v. Jenney, held that a private individual can sue under Title VI of the Civil Rights Act of 1964 to enforce the anti-retaliation regulations promulgated under that statute. The critical distinction between the two courts' analyses was the significance each attached to the requirement of deference to agency regulations established by Chevron U.S.A. Inc. v. National Resources Defense Council, Inc. This Comment argues that the Fourth Circuit was correct to incorporate Chevron into its analysis, and that its decision suggests a role for agencies in creating implied private rights of action that is much greater than the one articulated in Sandoval. While Sandoval may prevent agencies from creating private rights of action by themselves, they can achieve much the same effect by expansively interpreting the statutory rights of action created by Congress. With careful regulatory and statutory drafting, agencies and Congress can--and should--capitalize on the Chevron deference shown by the Fourth Circuit in Peters v. Jenney.
The Sanitized Workplace
112 Yale L.J. 2061 (2003) One of American society's most cherished beliefs is that the workplace is, or should be, asexual. This ethic is a legacy of our historic commitment to a conception of organizational rationality that treats sexuality as irrational and unproductive--a conception that had come under challenge until sexual harassment law gave it a new lease on life. Using a historical and sociological analysis, this Article demonstrates that the law's focus on eliminating unwanted sexual conduct has provided added incentive and increased legitimacy for a managerial project of suppressing sexuality in the workplace. In the name of preventing sexual harassment, many employers are prohibiting potentially benign forms of sexual conduct, without attending to the larger structures of sex segregation and inequality in which genuine sex harassment flourishes. Employers have begun to impose strict disciplinary measures, costing many people their jobs or reputations and threatening employees' ability to form their own work cultures. Employers also increasingly ban or discourage employee romance, chilling intimacy and solidarity among workers of both a sexual and nonsexual variety. Evidence also suggests that employers sometimes use sexual harassment charges as a pretext for punishing employees for discriminatory or other suspect reasons, and employees are quicker to accuse coworkers of a different race, sexual orientation, or class whose sexuality threatens or offends them. Contrary to the prevailing orthodoxy, this Article argues, workplace sexuality is not always discriminatory or disruptive: Sexual conduct takes its shape and meaning from the larger organizational context. Sociological research shows that women who work in well-integrated, egalitarian settings often participate and take pleasure in sexual interactions--probably because their numerical strength gives them the power to help shape sexual norms to their own liking. Thus, rather than encourage employers to desexualize, we should encourage employers to desegregate. To create the incentive to do so, the law should make sex harassment easier to prove in significantly segregated and unequal work settings, and harder to prove in fully integrated and equal ones. At an even more basic level, legal actors and reformers must abandon the traditional definition of harassment as unwanted sexual conduct in favor of a broader focus on discriminatory conduct, because the emphasis on sexual conduct as harmful has given the law a "cultural tilt" that meshes well with the classical organizational view of sexuality as unproductive and motivates managers to extend the reach of the law within organizations. By the same token, the fact that managers can justify their actions with reference to a feminist-inspired body of law has facilitated their ability to implement overzealous sexual harassment policies. Thus, this Article's account of the development of sexual harassment law teaches that law makes a difference, but the difference it makes depends on how it interacts with larger institutional and cultural forces that will shape it in everyday life. Ultimately, it argues, those who seek to halt sanitization must offer a new vision in which sexuality can coexist with, and even enhance, gender equality and organizational rationality.
In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State
112 Yale L.J. 1641 (2003) This Article argues that the law has constructed marriage as an institution capable of regulating the rights and responsibilities of even unmarried women. In various ways, the law has constructed the rights of certain groups of unmarried women "in the shadow of marriage": That is, the law--its imagination bounded by the dominant, normative paradigm of private, heterosexual relations--has defined an unmarried woman's legal status by virtue of her contiguous relationship (real or imagined) to marriage. By analyzing the shifting legal construction of widows' rights--particularly, the move away from widows' common-law dower rights--this Article explores the powers and limitations of marriage's shadow. It argues that even as lawmakers have sought to extend marriage's reach to women living outside marriage, they have simultaneously looked to the space outside of marriage's borders in order to define the meaning of marriage proper. A revised history of dower reveals the dynamic relationship between marriage's center and its shadow as the contested sociolegal terrain in which politicians and feminist advocates have--historically and today--debated the meaning of sex equality, as well as the proper relationship among women, the family, and the state.
Same-Sex Privacy and the Limits of Antidiscrimination Law
112 Yale L.J. 1257 (2003) Title VII of the 1964 Civil Rights Act, as it has been interpreted by the courts, is an uncompromising statute. It bars adverse employment actions taken on the basis of race, color, religion, sex, and national origin, with only one exception: in cases where an employer can demonstrate that sex, religion, or national origin is a "bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of that particular business or enterprise." Much of Title VII's impact, of course, depends upon the scope given to this exception, and, in particular, upon whether employers are allowed to claim inconvenience, cost, or customer preference as legitimate components of the BFOQ analysis. Because a broad exception would swallow the rule, the Supreme Court has held that the BFOQ provision was "meant to be an extremely narrow exception to the general prohibition of discrimination" and established a stringent test for its application. An employer seeking a sex-based BFOQ must have a "'factual basis'" to believe that "'all or substantially all women [or men] would be unable to perform safely and efficiently the duties of the job involved,'" or, alternatively, demonstrate that the qualification in question relates to "the 'essence,' or to the 'central mission of the employer's business.'" Courts have also strongly rejected attempts to define the "essence of a business" in ways that allow sex discrimination in through the back door of customer preference. The logic is the same as that justifying a narrow BFOQ: As one court put it, "[I]t would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid. Indeed, it was, to a large extent, these very prejudices the Act was meant to overcome." Thus, courts have refused to allow the preferences of airline customers to justify rejection of men for flight attendant positions, or the biases of customers or associates in other countries to justify refusal to promote women to positions directing international operations. To date, only a few kinds of sex-based BFOQs have been approved. The Supreme Court has authorized only one: In 1977, the Court granted a sex-based BFOQ to an Alabama maximum security prison, allowing it to exclude women from certain positions to ensure the safe administration of the prison. Lower courts and commentators have suggested that there may be many other kinds of BFOQs, including an "authenticity" BFOQ, which, for example, allows employers to hire only women for special undercover operations or theater productions, a "role model" BFOQ, and a BFOQ for rehabilitation purposes. Sex-based BFOQs are of interest not only because they authorize acts that would otherwise be considered discriminatory, but because they are a key location where sexual difference is symbolized in the law. If the law "interpellates" us, or recruits us into identities and ideologies that it names for and as us, then sex-based BFOQs offer us a unique vantage point from which to understand how we are created as legal subjects of sex. This Note examines one sex-based BFOQ, which eclipses all others in terms of its legitimacy, persistence, and breadth: the same-sex privacy BFOQ, which allows employers explicitly to exclude men or women from certain positions or employment opportunities to protect the privacy interests of customers of the opposite sex. It excuses a wide variety of overtly sex-based employment actions, from the seemingly trivial--the refusal to assign women to clean men's bathrooms --to the relatively extreme--the refusal to hire qualified men to fill any of the nursing positions in labor and delivery rooms. In 1991, the Supreme Court explicitly suggested that same-sex privacy could be the basis for a BFOQ, and both before and after that, lower courts have granted same-sex privacy BFOQs in a variety of contexts including labor and delivery rooms, mental hospitals, youth centers, washrooms, and nursing homes. Some courts have also granted same-sex privacy BFOQs in prisons, although many others have rejected them. Recently, employers have begun claiming--if not obtaining--BFOQ defenses in a variety of new settings, including weight-loss centers, health clubs, and spas. This Note addresses same-sex privacy cases because in them Title VII's strong command to remake the world in favor of employment equity and at the expense of discriminatory customer preferences meets its limit. These cases are striking not only because they appear to be the strongest category of sex-based exceptions to Title VII, but also because they are deeply untheorized and impossible to square with Title VII's much-vaunted rejection of customer preference. As Robert Post has pointed out, same-sex privacy cases illustrate how "Title VII does not simply displace gender practices, but rather interacts with them in a selective manner," and they also "force[] us to ask which gender practices are to be reshaped by Title VII, in what contexts, and in what ways." But how are we to know or decide which gender practices Title VII should challenge? This Note derives two teachings from same-sex privacy cases: first, that we must consider the symbolically as well as materially discriminatory effects of gender norms to decide which norms to challenge, and, second, that our inquiry must not end there. These cases make clear that costs attach not only to gender norms but also to their transformation. At times, courts will need to mediate between the discriminatory effects of a norm and the discriminatory effects of the attempt to change it. In such cases, I contend, effective resolution of this dilemma will usually not reside in sex segregation, but rather in non-sex-specific measures to alleviate the kinds of risks and costs we too quickly identify with sex itself. Part II demonstrates that the same-sex privacy doctrine fails to meet the stringent requirements established for BFOQs. There is no evidence in most same-sex privacy cases that all or substantially all members of one sex cannot perform the essential functions of the job in question. In fact, same-sex privacy BFOQs are simply concessions to customer preference, and they undermine employment equity in just the way that courts usually have held Title VII opposes. Courts in search of a principle that distinguishes the grounds of this BFOQ from forbidden customer preference typically turn to the law of privacy, but as Part III shows, this turn is too quickly made. Upon examination, it becomes clear that there are in many cases no relevant privacy rights at stake. Even in cases where there are privacy rights at stake, there is no logical reason to collapse privacy rights with sex and status as same-sex privacy doctrine does. If same-sex privacy cases are really about customer preferences, and cannot be defended via recourse to legally recognized privacy rights, how can they be explained? Part IV contends that there are two interrelated justifications at work in these cases. First, courts insist that same-sex privacy norms are so deeply held and so fundamental to our sense of identity that they are legitimately cast beyond the reach of antidiscrimination law. Second, courts imply that same-sex privacy norms should be respected because they are necessary for the physical and psychological protection of individuals. Part V asks whether either line of reasoning adequately justifies the exclusion of same-sex privacy norms from the set of gender norms that Title VII contests. It contends that they do not and that same-sex privacy doctrine is both materially and symbolically discriminatory. The claim of material discrimination is straightforward: The same-sex privacy BFOQ disadvantages women in the labor market because it facilitates the steering of women into low-status jobs. The notion of symbolic discrimination is less familiar, and one that I attempt to define against the background of these cases. Same-sex privacy cases, I argue, reinforce a symbolic order of gender that has a discriminatory effect upon women, because, for example, it casts them as constitutively vulnerable to sexualized attack, and as essentially and necessarily modest in a way that resonates with tendencies to propertize women and deny them sexual agency. These and the other symbolically discriminatory effects of the doctrine should concern us, and Title VII. These cases, however, suggest that it is not enough to ask which norms to challenge: We must also consider where and when to challenge them. Where changing gender norms will occasion costs such as the fear or risk of sexual abuse, we should take these costs seriously. Sex segregation, however, will rarely be the most effective way of avoiding these costs. Because of this, I conclude, same-sex privacy BFOQs should rarely, if ever, be judged legitimate.
Queer Brinksmanship: Citizenship and the Solomon Wars
112 Yale L.J. 673 (2002) In 1994, Congress passed a law commonly known as the Solomon Amendment, threatening universities and law schools with loss of federal funding if they deny or effectively prevent military recruiters from accessing campuses and directory information about students. It was the opening salvo in what has become a voluble expressive battle between the military and law schools. This fall, under cover of war, the Department of Defense (DoD) attempted to bring a decisive end to the conflict. Helping themselves to millions of dollars of ammunition from the coffers of their fellow agencies--with ambiguous authority at best--the military successfully forced Judge Advocate General (JAG) recruiters onto campuses around the country, upending carefully wrought compromises in favor of a show of force. This Comment takes this queer brinksmanship as its subject. There are numerous ways to criticize both the Solomon Amendment and the recent DoD enforcement campaign. It appears, for example, that the DoD is operating in violation of its own regulations, and relying upon statutory interpretations that raise serious constitutional questions under the Spending Clause. There are also potential First Amendment problems with the Solomon Amendment, particularly because of the special zone of speech protection that universities enjoy. From a pragmatic point of view, Solomon and the recent escalation look like colossal cognitive error. By refusing to hire openly gay, lesbian, and bisexual individuals, and by adopting tactics that generate protests and ethical dilemmas for potential recruits, the military sharply undermines its own recruiting efforts. This Comment contends, however, that we cannot measure Solomon's success or failure against its pragmatic impact on military recruiting, because Solomon is not and has never been about effective military recruiting. Rather, Solomon and its recent enforcement are maneuvers in an expressive battle, fought over the role that homosexuals play in a community, the purpose of the modern university, and the meaning of good citizenship. But if Solomon is a symbolic conflict, who is winning? This Comment suggests a surprising possibility: The military may be serving the cause of homosexuals by calling attention to its discriminatory policies in their most transparently homophobic context (the JAG Corps). The military also may have done universities a favor by returning them to their heritage of dissent: Forced to relinquish the accommodations upon which they relied to manage the conflict, universities and law schools now have little choice but simply to confront it. Finally, I suggest that those of us dedicated to nondiscrimination principles that include sexual orientation should welcome this opportunity for engagement--but also think seriously about what it would mean to win, and what we are willing to risk to do so.
Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions Against Sodomy
111 Yale L.J. 993 (2002)
Covering
111 Yale L.J. 769 (2002) In this article, Professor Yoshino considers how the gay civil rights movement might enright the American civil rights paradigm, which he takes to be predicated on the paradigm classifications of race and sex. He posits that gays may be able to contribute a more robust theory of the relationship between assimilation and discrimination, a theory that takes assimilation to be an effect of discrimination as well as an evasion from it. Yoshino believes that gays may be more attuned to the discriminatory aspects of assimilation because they are capable of assimilating in more ways than racial minorities or women. Either in fact or in the imagination of others, gays can assimilate in three ways - conversion (in which the underlying identity is changed), passing (in which the underlying identity is retained but masked), and covering (in which the underlying identity is retained and disclosed, but made easy for others to disattend). Yoshino first elaborates his taxonomy of assimilationist demands in the context of orientation. He demonstrates that as discriminatory animus against gays has become weaker, so too have the demands for assimilation, which have shifted in emphasis from conversion through passing toward covering. At the same time, however, Yoshino questions whether these shifts in emphasis are substantive or merely rhetorical, positing that covering demands that target traits or behaviors constitutive of identity are tantamount to conversion demands. Deploying a postmodern theory of status performativity, Yoshino suggests that a commitment to protect certain statuses might also require the protection of traits or behaviors that might partially constiute those statuses. Yoshino then applies his theory to the contexts of race and sex. He demonstrates that antidiscrimination discourse often distinguishes between racial minorities and women on the one hand and gays on the other, in part because of the relative inability of racial minorities and women to assimilate into mainstream society. Yet Yoshino maintains that racial minorities and women are not as immune to assimilationist demands as their general inability to convert or pass may suggest, as such groups are routinely asked to cover. Indeed, Yoshino argues that enforced covering is the contemporary form of discrimination to which racial minorities and women remain the most vulnerable. Yoshino thus contends that resistance to the covering demand in the legal and political spheres is an issue around which racial minorities, women, and gays might make common cause.
Categorical Federalism: Jurisdiction, Gender, and the Globe
111 Yale L.J. 619 (2001) An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense that they are neither exclusive nor necessarily enduring. With an understanding that "the local" and "the national" are not naturally bounded sites, multi-faceted federalism serves as a reminder about how much work is required to make democratic institutions accountable, at any level. The diminished clarity of physical boundaries becomes an invitation to renew interest in the work of local, subnational, and transnational structures, to interrogate current practices, and to imagine new ones. Freed from a sense of siege and a desire for fortifications, inquiry can proceed about the vitality of the United States's institutions and the array of joint ventures that subnational organizations have created. How could federalism discussions change? First, United States history ought to be retold to recognize the impressive contributions of local political structures. Rather than reading this century as a triumph of the national on the one hand or as a narrow escape from federal overreaching on the other, the persistence of local governance structures should be highlighted. Take the example of Indian tribes, which, in the face of federal efforts expressly aimed at "termination" of tribal identity, have had force sufficient to require return of tribal artifacts and the fulfillment of treaty obligations. Consider also the powerful role of states and cities, which, as demonstrated by the election of 2000, remain central players in national elections. Not only have local forms proven to be notably resistant to collapse through nationalization, they have also generated a range of national but not federal institutions. Indeed, as Theda Skocpol comments, the layers of federalism with its multiple sites of power create an "opportunity structure" that has made the United States specially nurturant to an array of associations. Thus, and second, we ought to pay more attention to the legal and political import of the many forms of federalism extant within this country. One important example is the interstate compact, which permits lawful means for joint ventures between contracting states. A classical use of compacts has been to resolve border disputes. But dozens of compacts now do more, ranging from sharing natural resources to managing transportation systems to administering economic programs. The use of compacts increased during the twentieth century, and a greater number and more varieties (including interstate agreements that do not result in formal legal compacts) are likely in the coming years. Attention to such agreements opens up possibilities for legislative innovation. For example, why assume that a new cause of action for VAWA victims could only exist in a state or a federal court? State court systems might coordinate their responses to victims of gender-based violence, as they already coordinate the movement and transfer of prisoners, and as they have begun to do in response to certain kinds of multistate actions such as mass torts and consumer products litigation. Further, in an array of such aggregate litigations (including a school desegregation case in Baltimore, asbestos claims in New York, and environmental injuries in Alaska), state and federal judges have crossed jurisdictional lines to respond to shared problems. A comparable joint venture, drawing on state courts' claimed advantages from working directly with families in disarray and on federal courts' association with equality law, could be forged to address violence against women. In addition to prompting invention, awareness of interstate compacts and judicial joint ventures ought to prompt sustained investigation into the allocation of power within such agreements. Who has decisionmaking power? What patronage arrangements are facilitated? Should law and policy create incentives for or strictures on making such accords? For example, should multistate agreements be channeled through the compact model, requiring congressional approval, or ought we be supportive of more diverse and less formal forms of such contracts? Should legal rules, such as the presumptive longevity of interstate compacts and the current formal barriers to joint venturing by state and federal judges, be restructured? Compacts could be conceived either as threats to the intelligibility of states or as a kind of "morphing" of states, in issue-specific arenas, to take into account subject matters that do not track state boundaries. Responsive policymaking ought to depend on a thicker understanding of the degree to which formal compacts enhance the visibility and accountability of governing structures, as well as better empiricism on the frequency and form of noncompact multistate agreements. The central question is the degree to which compacts enhance or impede democratic goals identified with state-based federalism, including accountability and participation. Third, as joint and interactive decisionmaking becomes the subject of lawmaking, conflicts should be addressed under the rubric of preemption doctrine. Given that state and federal laws address aspects of family law or international relations, the issues become narrowed to whether, in a particular circumstance, legal regimes can cohabit and whether one set of rules needs to be set aside. These focused inquiries would require judges to retreat from their forays into global political theory and thin historicizing. Instead, they would have to detail how and why joint governance was or was not possible in a specific context. Crosby, the Court's decision in the Massachusetts Burma case, is exemplary of this preferable, albeit more mundane and less powerful, role for judges, confined to discussion of the degree to which redundant or overlapping governance can be tolerated in a particular instance. That such decisions do not etch clear lines for all further lawmaking becomes their virtue, as adjudication becomes appropriately "local" in the sense of being limited by legal rules applied to discrete factual circumstances. Of course, preemption is not a magic bullet. Freewheeling Justices can impute intent to legislation and hence enhance their powers, but the methodology--examine statutes, apply facts, presume concurrency--cabins the reach of even the adventuresome. Fourth, in addition to looking within the United States to survey and to analyze the range of federalism here, multi-faceted federalism may draw on lessons from abroad. The challenges of coexisting and coextensive legal regimes are common to all federations, which must address when to permit shared "competence" and when to require preemption. While one cannot transport one federation's solution to another, countries can learn of the plausibility of particular delineations of authority. Take, for example, the increasing and formalized position of NGOs in the United Nations, which permits these nongovernmental groups to have a place in some official meetings. In 1948, 41 NGOs played an official consultative role; in 1993, 978 did so. Scholars of NGOs argue that the increased prevalence of NGOs should prompt a revision of theories about how authority and power are exercised. What role NGOs play in the United States has been given less attention. For example, might the National Association of Attorneys General be understood as an NGO, representing segments of state interests distinct from those presented through senators and members of Congress? Should the work of a host of such organizations become a part of political policymaking through formalized roles? What are the positive and the perverse effects of commingling or disaggregating the idea of "state interests" and states' decisional authority? In short, once willing to let go of categorical federalism's strictures, opportunities for invention multiply. The options are great because political practitioners are engaging in a range of group-based actions, enlisting the local, state-level, national, and transnational, the governmental and the nongovernmental, and whatever other entities they can, all to bring them closer to whatever their aspirations may be. Fifth, multi-faceted federalism makes more difficult the valorization of certain levels of government as specially able to get any particular social policy "right." Take the claim that the "national" is a venue committed to civil rights and that the federal courts are specially able to implement such commitments. Relying on the symbolic capital of a link between national lawmaking and civil rights, VAWA proponents argued that it was a traditional function of the national government to protect equality and to do so by vesting federal judges with jurisdiction. But that "tradition" was painfully incomplete when the country was founded, invigorated after the Civil War, then dismantled, then renewed, and now called again into question. The identity of the federal courts has shifted during the twentieth century--at times courts have been seen to be institutions of oppression (by labor and other populists) and at other times perceived to be institutions of salvation (by civil rights claimants). Both state and national constitutions speak of their commitments to equality, as do many other countries' constitutions and many international declarations. But to embody equality requires recommitment of national law in that direction, not simply the invocation of the nation as if it has intrinsically and inevitably allied itself with practices of equality. To equate the "local" with progressive human rights movements would also be erroneous. Above, I discussed a series of local innovations--focused on forced labor, land mines, apartheid, and women's rights--cheerfully allied with transnational human rights movements. But another group of local activities in the United States stands in opposition to such efforts and has been the brunt of targeted criticism from abroad. For example, the "local" in the United States has insisted on its right to execute individuals, juveniles included, despite transnational efforts to ban capital punishment. The phrase "states' rights" has been a shorthand for hostility to African Americans. Localities have also enacted ordinances aimed at limiting rights of lesbians and gays and of immigrants. In short, multi-faceted federalism counsels against assuming that either "the national" or "the local" has an intrinsically rosy glow. In parallel fashion, while CEDAW has been discussed as a powerful example of the possibilities of transnationalism to improve gender relations, neither transnational lawmaking nor globalism is necessarily an engine of equality. Indeed, some current expressions of globalization do significant harm to women. An oft-cited example is that offshore manufacturing is made attractive by the unending supply of impoverished female workforces, seeking to survive through a range of underpaid jobs. I claim no essence for globalization but only its existence, in that physical distances which had previously precluded certain forms of interactions no longer serve that function. What globalization--under current market and political conditions--has done is promote interest in forms of governance that regulate transactions outside and beyond the nation-state. That interest, in turn, has generated new opportunities for women to advance equality claims. Equality is not a necessary outcome of federating, but with the formulations of new structures come opportunities for alternative allocation of power. Gaps in governance are spaces in which all power-seekers, be they entrenched or newly fabricated, try to gain toeholds. And in this era, women's rights and human rights advocates have prompted governance institutions to make statements of commitment to equal treatment. That women have windows of opportunity to participate in generating laws does not necessarily result in laws good for all women. Serious questions, constant within feminism, remain about how to shape such equality demands and about which women will benefit. The category "women"--like the others discussed herein--is neither unitary nor necessarily permanent. Indeed, proponents of many forms of affirmative action deploy categories of identity in the hope of their future incoherence. Further, provisions that may benefit one group of women may not serve others of differing classes and races. The debates about the enactment of VAWA addressed such concerns. Transnational rights advanced in the name of women must also be interrogated to understand how their applications vary. Moreover, words about equality committed to paper in transnational documents such as CEDAW do not necessarily translate into conditions of equality in the lives of women and men. For example, some of the 165 countries that have ratified CEDAW have conditions oppressive to women more detrimental than those in the United States, a country that has not ratified CEDAW. Further, even when countries ratified CEDAW, they did so with unusually high numbers of reservations. In addition, CEDAW has limited means of implementation. CEDAW constitutes an achievement of significant legal and political proportions, but its translation into practice has not fully materialized. Similarly, I make no claim that international organizations are particularly receptive to women's rights; indeed, some are notoriously poor places for women to work. Nor are NGOs a glorious alternative, as they often not only reflect gendered allocations of work and authority but risk reinscribing them. Rather, globalism offers a contested political space, an interesting, additional place of potential power, of shifting categories and of new organizations. Proponents of women's rights have had the occasion to work in that venue and have been able to bring attention to injuries and their sources that heretofore were not of great interest to international institutions. A contemporary account can properly point to the correlation between expressions of human rights and certain transnational efforts made possible by historically specific conditions but ought not to lapse into essentializing any level of governance as intrinsically a source of equality norms. Moving toward a multi-faceted approach thus requires a willingness to face such complexities. The nation-state has been the means of governance for some three centuries, and for each harm that form of government has generated, a benefit can also be detailed. The perceived desirability of shifts that diminish the import of the nation as the key unit of governance depends in part on empirical assessments resting inevitably on debatable databases and a host of unknowns. If the nation no longer serves as a unit of accountability, if (for example) within the United States the "one voice" doctrine of international law relaxes, will a larger role for regions and localities do harm to the political stability of the United States and whatever human rights agendas it espouses? Might categorical federalism be a better route to import evolving equality norms into United States jurisprudence, based on an understanding that international law is itself a part of national law and therefore could preempt divergent state practices? Are international human rights obligations assigned at the national level at risk if localities gain prominence and the reliance on national borders diminishes? These questions are not, of course, novel or unique to the United States. Every federation is an ongoing experiment in how to maintain accountability and distinctive agendas concurrent with the reduction of the saliency of borders. While at one time, physical power and physical space provided at least temporizing answers that made plausible that unity of power (democratic or not), those boundaries no longer have the capacity to contain. The argument is not that place is irrelevant. The local is very much present in each person's life, manifested by the persons with whom one forms families and communities, by the weather systems that shape daily routines, and by the regions that are proximate and offer either friendship or hostility. But the boundaries of a given nation no longer control markets and can no longer promise physical security. In a parallel fashion, the family unit (predicated on very undemocratic power) once controlled goods, services, and people. The revolt against patriarchal families also ruptures the ability to confine familiar relationships to only certain kinds of pairings and offspring. The litigation about the civil remedy in VAWA raised an enduring problem of United States constitutional law about how to divide the power of judgment between courts and legislatures and, to a lesser extent, between states and Congress. The majority sought to answer by turning back to old images of state boundaries and to worn equations of jurisdiction and gender. The assumptions that located certain forms of action in the nation and other forms of action in local institutions have been overtaken by the permeability of institutions, both large scale political and small scale familial. Therefore, a retreat to those categories becomes a willed but unsuccessful effort to buffer oneself and one's country from the transformations with which one has to live. One cannot essentialize particular forms of federated governance as guarantees of certain outcomes or particular kinds of family relationships as generative of human growth. In the end, neither categorical nor multi-faceted federalism provides solutions to the problem of democratic organization and accountability. These are but the forms that may, depending on the content and meaning humans import to them, serve such ends.
"A Common Fate of Discrimination": Race-Gender Analogies in Legal and Historical Perspective
110 Yale L.J. 1045 (2001)