This Essay tells the story of U.S. feminist legal scholarship1 through the lens of some of the important work published in this field by the California Law Review (CLR). Its purpose is not to survey every contribution of feminist legal thought. Rather, through a few “deep dives,” it examines the significance of six specific exemplars, using them to explain the evolution and contributions of feminist legal scholarship, as well as the role CLR has played in the development of this field. I examine six articles: Herma Hill Kay’s Making Marriage and Divorce Safe for Women,2 Christine Littleton’s Restructuring Sexual Equality,3 Kathryn Abrams’s Hearing the Call of Stories,4 Francisco Valdes’s Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of “Sex,” “Gender,” and “Sexual Orientation” in Euro-American Law and Society,5 Linda Krieger’s Civil Rights Perestroika: Intergroup Relations After Affirmative Action,6 and Reva Siegel’s Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA.7
The scholarship I will describe emerged from a history that began roughly in the early 1970s.8 Before that time, the few pieces of feminist legal scholarship were by legal practitioners, not law professors.9 The first legal academic to undertake a comprehensive critique of the treatment of women in American law was University of California, Berkeley, School of Law (herein “Boalt Hall” or “Boalt”) graduate Leo Kanowitz, then a law professor at the University of New Mexico School of Law. In Women and the Law: An Unfinished Revolution, Kanowitz examined the Supreme Court’s highly deferential approach to sex-based classifications, and urged the Court to overrule equal protection precedents. If the Court did not extend a robust version of equal protection to sex-based classifications, he argued, Congress and spelled out the difference the ERA would make, if passed.These articles were cited in legal briefs filed in the string of U.S. Supreme Court cases after Reed that invalidated sex-based classifications under what emerged as “intermediate” equal protection scrutiny.Along with this general scholarship, feminist legal scholars in the 1970s also produced critiques of state and federal laws in specific fields where gender injustice was most apparent, including property,and the states should enact the Equal Rights Amendment (ERA).10 Subsequent scholarship further flushed out the case for a heightened standard of review in sex discrimination cases based on a straightforward analogy to race discrimination11 12 13 14 employment,15 the family,16 sexual violence,17 and the legal profession.18 Some of this scholarship was published in the handful of specialized journals that were started in the 1970s to provide an outlet for sex discrimination scholarship.19
It is noteworthy that while the work of early feminist scholars was cited in some Supreme Court briefs and influenced the level of constitutional scrutiny that courts should use to review sex-based classifications,20 legal scholarship had little, if any, impact on the most critical advances in the law in the 1960s and 1970s. For example, no feminist legal scholarship helped formulate, or advocate for, the two most important pieces of federal legislation designed to equalize women’s workplace opportunities—the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964.21 Likewise, feminist legal scholars did not develop the logic that supported the Supreme Court’s decision in Roe v. Wade, identifying a woman’s right to choose an abortion.22
The fact is that in the early 1970s, there were very few women in the legal academy,23 and sex discrimination was not a recognized field of study or research. The first “Women and the Law” course did not exist until 1969, at NYU,24 and the first two sex discrimination casebooks were not published until 1974 and 1975, respectively.25 Reflecting the roots of the early scholarship in women’s experiences as feminist advocates, the authors of these casebooks were engaged in reforming the law, as well as writing about it.26 Their work launched a field that, for more than three decades, has generated a rich body of legal scholarship.
This Essay reviews six selections from that body of work, all published by the California Law Review. I start with Herma Hill Kay’s Making Marriage and Divorce Safe for Women, published by the California Law Review in 1972.27 Although in the form of a book review,28 the Essay is a jumping off point for a broad critique of marriage law from a feminist perspective. Like most feminist scholarship in the 1970s, it focuses on a specific legal domain—the family—and while it chooses among already-imagined legislative reforms to legislative problems, in the depth of its critique it anticipates the radical and theoretical scholarship that was to follow.
I turn then to Christine Littleton’s Restructuring Sexual Equality, published in 1987, to explore the basic contours of the equality debate that dominated feminist legal scholarship in the 1980s. This period was the high-water mark of new proliferations of meanings of equality, and also saw the emergence of a series of theoretical innovations—critical legal feminism, different voice theory, and nonsubordination theory—that remain influential with respect to feminist thought.
Kathryn Abrams’s Hearing the Call of Stories, published by the California Law Review in 1992, is the next marker, which I use to explore the evolution of feminist legal method. Through the lens of this work, I address some of the unique methodological contributions of feminist theory in the 1980s and 1990s, most notably the shift in emphasis from abstract logic to experience as a basis for truth, the emerging habit of constructive self-criticism within feminist legal theory, and the increasing awareness of the relationship between sexism and subordination on grounds other than sex.
I then examine feminist challenges to questions of gender identity and, in particular, the role of legal categories in regulating matters of sex and sexuality. For this examination, my text is a 377-page “project” by Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of “Sex,” “Gender,” and “Sexual Orientation” in Euro-American Law and Society, published in 1995 by the California Law Review. In this project, Valdes explains how the relationships between sex, gender, and sexual orientation are often confused in a way that reflects, and projects, heterosexist values and constraints in law and society. The relationship between “queer theory” and feminist legal scholarship is too complicated to explore in detail in this Essay, but I briefly review the questions queer theory raises for issues of gender identity and feminist legal theory more broadly.
Finally, I analyze two relatively recent articles that represent important interdisciplinary trends in feminist scholarship. These articles are Linda Krieger’s Civil Rights Perestroika: Intergroup Relations After Affirmative Action, published by the California Law Review in 1998, and Reva Siegel’s Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA, published in 2006. Both of these pieces focus on the interrelationship between legal and social change and, importantly, do as much to advance learning outside the boundaries of feminist scholarship as within them.
1.By feminist legal scholarship, I mean scholarship aimed at critically describing the relationship between gender and law, prescribing how that relationship might be improved, or both. Feminist scholarship generally shares a grounding in women’s experience and a commitment to dismantling the existing sex-gender system. See Patricia A. Cain, Feminist Legal Scholarship, 77 IOWA L. REV. 19, 20 (1991) (“[L]egal scholarship is not feminist unless it is grounded in women’s experience,” and unless it seeks to “uncover the ways in which law has privileged male over female.”). This Essay only concerns legal scholarship published in law reviews; the distortion this focus imposes on the history of feminism is, itself, part of the story of the history of legal scholarship. If this Essay was not tied to the evolution of law review scholarship, the account could have begun with, say, Mary Wollstonecraft in England, or with Elizabeth Cady Stanton in the United States. See MARY WOLLSTONECRAFT, A VINDICATION OF THE RIGHTS OF MEN (1790); ELIZABETH CADY STANTON, THE DECLARATION OF SENTIMENTS (1848). If it was not tied to work done by law professors, it would have started with a very substantial article written by a graduate of Boston University Law School, Blanche Crozier, in 1935. See Blanche Crozier, Constitutionality of Discrimination Based on Sex, 15 B.U. L. REV. 723 (1935), and infra notes 110–115, 121. A still different approach would have emphasized the work of legal advocates or leaders in the feminist movement in the United States or abroad. See, e.g., Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 GEO.WASH. L. REV. 232 (1965). See infra note 9 and accompanying discussion. For a fabulous historical account of women’s legal equality that focuses on feminist advocates in the United States, see FRED STREBEIGH, EQUAL:WOMEN RESHAPE AMERICAN LAW (2009).
2.Herma Hill Kay, Making Marriage and Divorce Safe for Women, 60 CALIF. L. REV. 1683 (1972) (reviewing MAX RHEINSTEIN,MARRIAGE STABILITY,DIVORCE, AND THE LAW (1972)).
3.Christine A. Littleton, Reconstructing Sexual Equality, 75 CALIF. L. REV. 1279 (1987).
4.Kathryn Abrams, Hearing the Call of Stories, 79 CALIF. L.REV. 971 (1991).
5.Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of “Sex,” “Gender,” and “Sexual Orientation” in Euro-American Law and Society, 83 CALIF. L. REV. 1 (1995).
6.Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 CALIF. L.REV. 1251 (1998).
7.Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323 (2006).
8.With few exceptions, legal scholars before this time, for whatever reason, simply did not consider women’s rights a plausible scholarly subject. Of note, the most frequently cited article ever published by the California Law Review set forth in 1949 the basic framework for modern equal protection doctrine, without naming sex among the categories that might someday warrant special scrutiny. See Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 CALIF. L. REV. 341, 355 (1949) (“Candidates [as forbidden classifications] today might be designated with relative ease—race, alienage, color, creed. . . . One would hesitate to close the list arbitrarily and foreclose the future. Another epoch might discover constitutional irrelevancies of which we are unaware.”); cf. Fred R. Shapiro, The Most-Cited Law Review Articles Revisited, 71 CHI-KENT L. REV. 751, 767 (1996) (identifying Tussman & tenBroek as the fourteenth most often cited law review article).
9.For example, a co-authored 1965 article broadly criticizing the law’s treatment of women was written by feminist lawyers Pauli Murray and Mary Eastwood. Murray & Eastwood, supra note 1. Murray was a well-known civil rights attorney, part of the legal team in Brown v. Board of Education, and one of the co-founders, with Ruth Bader Ginsburg, of the Women’s Rights Law Reporter at Rutgers School of Law-Newark. She was also an Episcopal priest. Murray was denied admission to the University of North Carolina Law School in 1938 because of her race (she attended Howard), and denied admission to an advanced degree program at Harvard Law School in 1944 because she was a woman (she became the first black woman to receive an S.J.D. degree from Yale Law School). While she spent some time on the faculty at Brandeis University and taught law in Ghana, she does not appear to have ever been a member of a U.S. law school faculty. Her posthumously-published autobiography is PAULI MURRAY, SONG IN A WEARY THROAT: AN AMERICAN PILGRIMAGE (1987). Mary Eastwood was a career attorney in the Office of Legal Counsel at the U.S. Department of Justice. Eastwood helped to instigate the founding of the National Organization for Women. Serena Mayeri, Constitutional Choices: Legal Feminism and the Historical Dynamics of Change, 92 CALIF. L. REV. 755, 767, 786 (2004). In 1970, she wrote another law review article, arguing that the Supreme Court decisions that had denied women their rights were wrong, and that the U.S. Constitution guaranteed equality for women, with or without the Equal Rights Amendment. See Mary Eastwood, The Double Standard of Justice: Women’s Rights Under the Constitution, 5 VAL. U. L.REV. 281 (1971).
10.LEO KANOWITZ, WOMEN AND THE LAW: AN UNFINISHED REVOLUTION 181, 192–96 (1969). The book was cited in briefs in Reed v. Reed, 404 U.S. 71 (1971), the case to which the Supreme Court first applied a more rigorous “rational basis” test than it had in previous challenges to sex-based legal classifications. Brief for Appellant at 10, 29, 31, 33–35, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4); Brief for Am. Veterans Comm., Inc. and NOW Legal Def. & Educ. Fund, Inc. as Amici Curiae Supporting Appellant at 13, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4); Brief of City of New York as Amicus Curiae Supporting Appellant at 14, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4).
11.See John D. Johnston, Jr. & Charles L. Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46 N.Y.U. L. REV. 675 (1971). Richard Wasserstrom, a few years later, extended the race/sex analogy. Richard A. Wasserstrom, Racism, Sexism, and Preferential Treatment: An Approach to the Topics, 24 UCLA L.REV. 581 (1977).
12.Barbara A. Brown et al., The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 YALE L.J. 871, 899, 901 (1971). The ERA was first proposed in 1923. After the ERA passed in Congress in 1972, thirty-five states ratified it, but the time expired in 1982 before it was approved by the necessary thirty-eight states. Efforts continue to “restart” the process. For running updates, see THE EQUAL RIGHTS AMENDMENT, http://www.equalrightsamendment.org (last visited Jan. 1, 2012).
13.See, e.g., Orr v. Orr, 440 U.S. 268 (1979); Craig v. Boren, 429 U.S. 190 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).
14.See, e.g., John D. Johnston, Jr., Sex and Property: The Common Law Tradition, the Law School Curriculum, and Developments Toward Equality, 47 N.Y.U. L. REV. 1033 (1972); Judith T. Younger, Community Property, Women and the Law School Curriculum, 48 N.Y.U. L. REV. 211 (1973); see also articles cited infra note 16.
15.See, e.g., Denis Binder, Sex Discrimination in the Airline Industry: Title VII Flying High, 59 CALIF. L. REV. 1091 (1971); Joan I. Samuelson, Employment Rights of Women in the Toxic Workplace, 65 CALIF. L. REV. 1113 (1977); Mary Joe Frug, Securing Job Equality for Women: Labor Market Hostility to Working Mothers, 59 B.U. L. REV. 55 (1979); James C. Oldham, Questions of Exclusion and Exception Under Title VII —“Sex-Plus” and the BFOQ, 23 HASTINGS L.J. 55 (1971); Grace Blumberg, De Facto and De Jure Sex Discrimination Under the Equal Protection Clause: A Reconsideration of the Veterans’ Preference in Public Employment, 26 BUFF. L. REV. 1 (1976).
16.See, e.g., Nancy C. Erickson, Spousal Support Toward the Realization of Educational Goals: How the Law Can Ensure Reciprocity, 1978 WIS. L. REV. 947; Susan Westerberg Prager, The Persistence of Separate Property Concepts in California’s Community Property System, 1849–1975, 24 UCLA L. REV. 1 (1976); Susan Westerberg Prager, Sharing Principles and the Future of Marital Property Law, 25 UCLA L.REV. 1 (1977).
17.See, e.g., Vivian Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 COLUM. L. REV. 1 (1977); Camille E. LeGrand, Rape and Rape Laws: Sexism in Society and Law, 61 CALIF. L. REV. 919 (1973); Elizabeth Truninger, Marital Violence: The Legal Solutions, 23 HASTINGS L.J. 259 (1971).
18.See, e.g., Rosabeth M. Kanter, Reflections on Women and the Legal Profession: A Sociological Perspective, 1 HARV.WOMEN’S L.J. 1 (1978); Doris Sassower, The Legal Profession and Women’s Rights, 25 RUTGERS L. REV. 54 (1970).
19.A group of founders that included Ruth Bader Ginsburg started The Women’s Rights Law Reporter at Rutgers School of Law-Newark in 1972. This journal still exists today. The Harvard Women’s Law Journal began in 1978 and also continues today. Two other journals began in 1976, but no longer exist. For a fuller history, see Katharine T. Bartlett, Feminist Canon, in LEGAL CANONS 266, 289 n.5 (J.M. Balkin & Sanford Levinson eds., 2000); Richard H. Chused, A Brief History of Gender Law Journals: The Heritage of Myra Bradwell’s Chicago Legal News, 12 COLUM. J. GENDER & L. 421, 422 (2003). Today, there are over two dozen specialized gender journals. See Law Journals: Submissions and Rankings, WASH. & LEE U. SCH. L., http://lawlib.wlu.edu/lj/index.aspx (last visited Jan. 4, 2012) (search for “gender, women, and sexuality” from drop-down menu).
20.See supra notes 10–13.
21.On the history of the addition of sex to Title VII which runs contrary to the conventional wisdom that “sex” was added to Title VII as a joke or as an effort to defeat the bill, see Mary Anne Case, Reflections on Constitutionalizing Women’s Equality, 90 CALIF. L. REV. 765, 767 (2002); Jo Freeman, How “Sex” Got into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 LAW &INEQ. 163, 182–83 (1991).
22.410 U.S. 113 (1973). Before Roe, in 1965 in a comprehensive article suggesting the many directions in which the right of privacy identified in Griswold v. Connecticut, 381 U.S. 479 (1965), might be expanded, Yale law professor Thomas Emerson offered one tentative sentence relating to abortion. See Thomas I. Emerson, Nine Justices in Search of a Doctrine, 64 MICH. L. REV. 219, 232 (1965) (stating that if the right to privacy includes some protection from compulsory sterilization or birth control, “the way would be open for an attack upon significant aspects of the abortion laws”). In addition, a law review article published by Mary Eastwood in 1970 contained a tantalizing suggestion about the possible equality basis of a right to abortion. See Eastwood, supra note 9, at 313 (stating that a criminal abortion statute “does not involve a direct question of denial of equality but of denial of other human rights beyond the scope of this article,” but noting that “the abortion issue is not unrelated to the equality issue because the same underlying bases for court decisions denying equality of the sexes (women as reproductive instruments of the state, as dangerous to morality, and properly under the control of men) are implicit in the abortion laws”).
23.In the fifty years between 1919 and 1969, a total of only fifty-one women had been hired in tenured or tenure-track positions on U.S. law faculties. Herma Hill Kay, The Future of Women Law Professors, 77 IOWA L. REV. 5, 15 (1991). By way of contrast, fifty-five women were hired to fill tenured or tenure-track positions in 1974 alone. Id. More recently, 37 percent of all law faculty members listed in The AALS Directory of Law Teachers 2008–2009 are women. See Association of American Law Schools Statistical Report on Law School Faculty and Candidates for Law Faculty Positions, 2008–2009 AALS Statistical Report on Law Faculty, ASS’N AM. L. SCHS., http://www.aals.org/ statistics/2009dlt/genderhtml (last visited Jan. 4, 2012).
24.See Linda K. Kerber, Writing Our Own Rare Books, 14 YALE J.L. & FEMINISM 429, 431–33 (2002).
25.See KENNETH M.DAVIDSON, RUTH BADER GINSBURG &HERMA HILL KAY, TEXT, CASES AND MATERIALS ON SEX-BASED DISCRIMINATION (1974); BARBARA ALLEN BABCOCK, ANN E. FREEDMAN & ELEANOR H. NORTON, SEX DISCRIMINATION AND THE LAW: CAUSES AND REMEDIES (1975).
26.For example, Herma Hill Kay served from 1968–1970 as Co-Reporter for the Uniform Marriage and Divorce Act, which led the way in identifying more progressive marriage and divorce laws. Kay also supervised her students in preparing an amicus brief in Sail’er Inn v. Kirby, 485 P.2d 529 (Cal. 1971), a case that produced the first state court decision holding that sex, like race, should be treated as a suspect class under the state and federal constitutions. One of Kay’s co-authors, Ruth Bader Ginsburg, practiced law with the ACLU Women’s Rights Project, which she helped found. See DIANA KLEBANOW & FRANKLIN L. JONES, PEOPLE’S LAWYERS: CRUSADERS FOR JUSTICE IN AMERICAN HISTORY 363–65 (2003). Through her role at the ACLU, Ginsburg wrote the plaintiff’s brief in Reed and Frontiero v. Richardson, 411 U.S. 677 (1973), a case in which four justices of the U.S. Supreme Court endorsed the position that sex should receive the same strict scrutiny as used to evaluate race-based classifications, as well as Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). See STREBEIGH, supra note 1. Kenneth Davidson, an antitrust law professor at SUNY-Buffalo, participated in several sex discrimination lawsuits for the National Organization for Women and the ACLU, including Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), and Corning Glass Works v. Brennan, 417 U.S. 188 (1974). Barbara Babcock was director of the Public Defender Service in the District of Columbia, and the first woman on the regular faculty at Stanford Law School. Ann Freedman, while a student at Yale Law School, co-authored the leading article published by the Yale Law Journal on the ERA, and was the founder of a women’s law firm in Philadelphia. Eleanor Holmes Norton was at the time chair of the New York City Human Rights Commission. Susan Deller Ross, who instigated the first Women and the Law course at NYU, was a lawyer at the Equal Employment Opportunity Commission (EEOC) at a time when the EEOC was developing rigorous regulations implementing Title VII, and later became well known for her representation of Anita Hill. See Kerber, supra note 24, at 430–33.
27.Kay, supra note 2.
28.The article reviews MAX RHEINSTEIN, MARRIAGE STABILITY, DIVORCE, AND THE LAW (1972).