Saturday, September 8, 2012
The Survey: Culture & Rights in the Post-Brown Era
Posted by Anders Walker
Anders Walker, A Horrible Fascination: Segregation, Obscenity & the Cultural Contingency of Rights, 89 WASH. U. L. REV. 1017 (2012)). A recent book that has proven particularly helpful in thinking through some of the ramifications of these cultural politics in the post-Brown South is Serena Mayeri's Reasoning From Race: Feminism, Law, & the Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2011). A must-read for anyone who teaches Equal Protection in Con Law, Mayeri challenges the way that the relationship between racial classifications and gender classifications are often portrayed, both in Con Law surveys and legal history source books. Take, for example, HFE, which bridges civil rights and women's rights by simply stating that "[w]omen learned from the civil rights movement's fight against race-based discrimination," and then includes excerpts from Griswold and Roe, neither of which originated in the South (HFE, p. 519-525). Mayeri, by contrast, demonstrates not simply how women learned from civil rights activists, but also how cultural attacks on black rights, beginning with attacks on black unwed mothers and illegitimacy in states like Mississippi, led attorneys like Ruth Bader Ginsburg and Wendy Webster Williams to break "new ground" by linking "illegitimacy-based classifications with both race and sex discrimination." (Mayeri, p. 161) The battle over illegitimacy in the South would continue, leading to Supreme Court cases like Levy v. Louisiana, 391 U.S. 68 (1968) and King v. Smith, 392 U.S. 309 (1968), both of which pointed to new directions in equal protection jurisprudence.