Our Lives Before the Law PDF
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OUR LIVES BEFORE THE LAW This page intentionally left blank OUR LIVES BEFORE THE LAW CON ST RUCT I NG A F EM I N I S T J U R I S P R UD ENC E Judith A. Baer P R I N C E T O N U N I V E R S I T Y P R E S S P R I N C E T O N, N EW J E R S E Y COPYRIGHT 1999 BY PRINCETON UNIVERSITY PRESS PUBLISHED BY PRINCETON UNIVERSITY PRESS, 41 WILLIAM STREET, PRINCETON, NEW JERSEY 08540 IN THE UNITED KINGDOM: PRINCETON UNIVERSITY PRESS, CHICHESTER, WEST SUSSEX ALL RIGHTS RESERVED LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA BAER, JUDITH A. OUR LIVES BEFORE THE LAW : CONSTRUCTING A FEMINIST JURISPRUDENCE / JUDITH A. BAER. P. CM. INCLUDES BIBLIOGRAPHICAL REFERENCES AND INDEX. ISBN 0-691-03316-1 (CLOTH : ALK. PAPER) ISBN 0-691-01945-2 (PBK. : ALK. PAPER) 1. FEMINIST JURISPRUDENCE. 2. WOMEN—LEGAL STATUS, LAWS, ETC.—UNITED STATES. I. TITLE. K349.B34 1999 340′.082—dc21 98-55309 THIS BOOK HAS BEEN COMPOSED IN JANSON CHAPTER 5 OF THE PRESENTWORK APPEARED AS PART OF THE AUTHOR’S ESSAY, “WOMEN’S RIGHTS AND THE LIMITS OF CONSTITUTIONAL DOCTRINE,” 44 WESTERN POLITICAL QUARTERLY (1991): 828–852. THE PAPER USED IN THIS PUBLICATION MEETS THE MINIMUM REQUIREMENTS OF ANSI/NISO Z39.48-1992 (R1997) (PERMANENCE OF PAPER) http: //pup.princeton.edu PRINTED IN THE UNITED STATES OF AMERICA 1 3 5 7 9 10 8 6 4 2 I N M EMOR I AM THE WOMAN IN THE HOUSTON MORGUE JANUARY 2 0 , 1 9 9 3 SHE WAS IN HER TWENTIES , LEFT A SMALL CHILD , AND WAS A V ICT IM OF DOMEST IC V IOLENCE . OUR POL IT ICS MUST HAVE AS ONE OF ITS GOALS AN END TO THI S K IND OF K ILL ING . Jane Rule This page intentionally left blank CONTENTS PREFACE ix ACKNOWLEDGMENTS xv PART I: LAW THROUGHWOMEN’S LIVES 1 ONE Introduction 3 TWO Is Law Male? The Foundations of Feminist Jurisprudence 16 THREE What Makes Law Male? Gendered Jurisprudence and Feminist Critique 39 FOUR How Is Law Male? Gendered Method and Feminist Response 71 PART II: WOMEN’S LIVES THROUGH LAW 95 FIVE Reconstructing Equality: Feminist Constitutional Doctrine 97 SIX Reconstructing Rights: Feminist Reproductive Freedom 124 SEVEN Reconstructing Responsibility: Feminist Fetal Protection 151 EIGHT Toward a Feminist Postliberalism 176 NOTES 203 BIBLIOGRAPHY 247 GENERAL INDEX 265 INDEX OF CASES 273 This page intentionally left blank PREFACE HIS BOOK was born out of anger and hope. The anger comes frommy observations of the lives women live and from the failure Tof contemporary feminist scholarship to deal with the conditions women endure. The hope comes from my belief that theory can explain situations and practice can improve them. These beliefs persist in the face of considerable evidence to the contrary. But acting on them has worked for me often enough to inspire these efforts to reground and redirect feminist jurisprudence. This is a contrarian book. I reject much of the conventional wisdom about feminism and American society. I believe that the worst mistake fem- inists have made is to be too nice. The effort to be nice has corrupted and weakened both feminist theory and feminist practice. Far from bashing men, we have labored to avoid offending them. We have too often pulled our punches when discussing male aggression, male irresponsibility, male indolence, and male privilege. We have wasted time and energy criticizing feminists who refuse to moderate their message. Far from trashing full- time homemakers, pink-collar workers, or any women who lead lives dif- ferent from those we want for ourselves, we have been so eager to praise women for the work they do that we have let it stay women’s work. This kind of accommodation may or may not be good politics, but it is never good scholarship. The desire to please must not master the pursuit of truth. Feminist failures of nerve arise partly from the fact that feminists tend to come from at least one of two groups of people who are trained in kindness, tolerance, acceptance, and guilt. These groups are women and liberals. (And I venture a guess that male feminists are even more likely than women to be present or former liberals.) As critical as feminists are of both gender stereotypes and liberalism, we too often act like lady liberals. Femininity and liberalism share certain habitual attitudes. Guilt is one; another is what might be called asymmetrical solicitude. Liberals learn to respect other people’s points of view, but not to expect these others to reciprocate. Feminists often behave the same way. They extend to their opponents the rights to act and the immunities from inter- ference which are central tenets of liberalism, but they hesitate to claim these benefits for themselves. For example, supporters of the proposed Equal Rights Amendment and of reproductive freedom have gotten fre- quent reminders that many women disagree with them, that they do not speak for all women. Anti-ERA and antichoice women do not hear similar admonitions, although the same applies to them. Habits of courtesy, defer
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