Article published in Washington University Law Review, Volume 97, Issue 4

Click here for full article

Abstract

In 2017, the Supreme Court decided Sessions v. Morales-Santana, a challenge to 8 U.S.C. § 1409, the law governing the conferral of U.S. citizenship to children born abroad to parents who are U.S. citizens. As the Court noted in a forceful opinion, § 1409 imposed different and more onerous physical presence requirements on unwed fathers than unwed mothers, making it difficult for nonmarital fathers to transmit their U.S. citizenship to their foreign-born children. Such distinctions, the Court concluded, were rooted in archaic gender stereotypes and thus incompatible with equal protection principles.

Although Morales-Santana corrected the gender discrimination inherent in § 1409, it said nothing of the statute’s other constitutionally infirm provisions. Although it has drawn little attention, § 1409 also discriminates on the basis of illegitimacy, which like gender, is a quasi-suspect classification for purposes of equal protection law. Specifically, § 1409 requires nonmarital children to prove that they have been legitimated by their unwed U.S. citizen fathers to establish their derivative citizenship claim. By contrast, foreign-born children in wedlock need not show that they have been legitimated; by virtue of their parents’ marriage, they are legally recognized as “legitimate” children. These legitimation requirements have made it more difficult for foreign-born nonmarital children of U.S. citizen parents to prove what should be regarded as their pre-existing citizenship. Crucially, in general, laws such as these that distinguish on the basis of a parents’ marital status constitute illegitimacy discrimination. Yet, the Court in Morales-Santana neglected to acknowledge this unequal treatment of nonmarital children, focusing instead on how § 1409 discriminated on the basis of gender and effectively allowing this unconstitutional practice to continue.

This Article calls attention to the prevalence of illegitimacy classifications in immigration law by identifying what we term “illegitimate citizenship rules.” In highlighting the pervasiveness of this form of discrimination, this Article makes three contributions. As a descriptive matter, these rules demonstrate the unfinished project within equal protection law of eviscerating discrimination against nonmarital children, which includes the treatment of such children in immigration law. As a doctrinal matter, the Article argues that the Supreme Court’s narrow focus on the sex equality dimension of § 1409 rendered invisible the discrimination against nonmarital children. Finally, as the Article makes clear, by discriminating against nonmarital children, illegitimate citizenship rules promote and perpetuate the “traditional” family and thus discriminate against those families that do not comport with the heterosexual marital family model. The Article concludes by recommending that Congress seize the opportunity created by Morales-Santana to address and eventually eradicate the ongoing discrimination against nonmarital children who are born abroad.

This Article asks a fundamental question: Why does a society ostensibly committed to racial equality allow players in the assisted reproductive technology (ART) market to buy and sell race? As consumers in the ART market well know, human gametes (both eggs and sperm) are packaged, marketed, and sometimes priced based on race. The role these market practices play in naturalizing segregation and promoting racial inequality has been recognized, but curiously there has been no will generated to address this commercial practice head-on. This Article explores the cultural and regulatory impasse that must be overcome to address this racial phenomenon. Part I probes the racial categorization practices currently used in the ART market to provide a better account of what is actually being exchanged when parties purport to sell racially marked ova and sperm. After exploring the high risk of fraud, confusion, and potentially misleading speech, the Article demonstrates how gamete banks’ current racial categorization practices could thrust courts back into discredited, antiquated legal arguments about racial purity and racial fraud. Part II probes customer preference claims about race to determine what it is consumers believe they are buying when they purchase race in the ART market. Close examination of customers’ arguments reveals the residual influence of anti-miscegenation norms, regressive femininity and masculinity constructs, and a desire to outsource the challenges associated with achieving racial equality. Part III asks whether our Fourteenth Amendment racial equality guarantees require government to wholly prohibit ART exchanges based on race, and explores the likely resistance regulators will face based on reproductive freedom concerns. Part III concludes by exploring First Amendment considerations, specifically, whether government speech doctrine allows states to combat regressive ART messages based on race, or whether commercial speech limitations could be used to limit ART marketers’ more destructive race-based messages.

Click to site for full article.

Abstract

As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our celebration would be premature if we failed to reflect on the ways that race has been used to fracture women’s efforts at coalition politics and our understanding of women’s rights. Indeed, a careful reading of U.S. history and contemporary politics shows that although similar rights claims are made across a diverse community of American women, women’s shared interests are often obscured by the divisive manipulation of race. Notably, 2020 is also the 150-year anniversary of the Fifteenth Amendment, which granted the right to vote to Black men. In this Article, we use the coinciding anniversaries of the two amendments as a critical opportunity to direct feminist attention to intersectional questions—to frame this historical moment as a pivot point that explores the mutually constitutive nature of gender and racial subordination in American politics.

9780190695620

Published in The Oxford Handbook of Law and Humanities
Edited by Simon Stern, Maksymilian Del Mar, and Bernadette Meyler

This chapter explores contemporary accounts of racialization, arguing that Americans are currently experiencing a period of “racial ambiguity blues.” The chapter explains that contemporary racial politics have been powerfully shaped by the emergence of a group of racially ambiguous characters offering controversial racial claims. The controversies triggered by these stories of racial ambiguity lay bare the fact that there currently are competing rules for determining an individual’s race in American society and no single model or account of racialization controls. The chapter briefly lays out the three contemporary racialization models: “so-called” biological race, physical race, and performative race. It then identifies the material and political implications of each racialization model. After noting the challenges the competing racialization models pose for sociology, the chapter highlights ways aspects of the various racialization models can be integrated, offering as an example the author’s account of “elective race.” Additionally, the chapter points to the ways in which analytic approaches from the humanities can help social science scholars craft new analyses that better account for racial ambiguity and racial fluidity. The chapter closes by identifying four new challenges on the horizon for all scholars of racialization across field.

Moderated by NBC News justice correspondent Pete Williams, panelists engaged in a lively discussion that quickly took off from the historical achievement of the suffragists’ decades-long battle to achieve the largest expansion of democracy in American history. That battle extended from the famous 1848 Seneca Falls convention to the ratification of the 19th Amendment by one vote by the Tennessee legislature in 1920, enshrining women’s suffrage in the U.S. Constitution. In the 1920 presidential election, 8 million more women were able to vote.

This workshop featured Camille Gear Rich, USC Gould Law, with commentary by Richard McAdams, University of Chicago Law School.

Partial Introduction

The day eventually came when Jennifer Cramblett, like many other American women, lovingly looked at her partner and decided, it was time to “start a family. ”Cramblett, however, like many other prospective mothers, faced certain biological challenges that threatened to thwart her desire to reproduce. Luckily Cramblett, as an economically-privileged prospective mother, discovered that the market would provide what Mother Nature would otherwise deprive — the genetic material and the means necessary for her to produce biologically-related progeny. Her salvation was the Assisted Reproductive Technology (“ART”) marketplace, a space where she could purchase sperm or eggs, or even rent a womb if necessary to achieve her goal. Cramblett’s ultimate choice — to purchase genetic material from a sperm donor, would have been an unremarkable, standard ART transaction, but for a small administrative error that had major racial implications. Although Cramblett requested and purchased sperm from Donor 80, a blond blue eyed white male, the clerk handling the transaction misheard her request and sent her sperm from Donor 330, a brown haired, brown eyed Black male. The clerk’s mistake erupted into a commercial controversy, a family controversy and a racial controversy all in one. For Cramblett, as a member of a monoracial blond, white lesbian couple, had contracted for the chance to form a white nuclear family. While she ultimately opted to give birth to the mixed race baby now actively growing in her womb, Cramblett also filed suit for the clerk’s “racial mistake,” for she effectively had been denied the “benefit” of her bargain in the ART transaction.

In this Hot Topic Panel, legal scholars will address the ways in which Justice Kavanaugh’s nomination, hearings, and confirmation impact a wide variety of legal domains, including sexual harassment and assault laws, workplace equality, policing, substantive and criminal law, administrative law, the field of judicial ethics, and the standards of proof appropriate for criminal, legal, and political processes. We will also engage the ways in which Justice Kavanaugh’s role in today's political and legal climate intersects with jurisprudence, such as critical legal feminism and the moral theory of epistemic injustice.

Essay published in the Stanford Journal of Civil Rights & Civil Liberties XIV:SI57, Special Issue: Countering Hate in America

Synopsis

This forthcoming Essay draws upon the racial conflict spurred by the “Unite the Right” rally in Charlottesville, Virginia, to explore the unspoken relationship between gender, protest, and violence in contemporary American society. It posits that the anemic response from the ACLU and government to the threat posed by the Unite the Right rally in Charlottesville stems from various gendered limitations in traditional First Amendment analysis. Armed with insights from masculinity studies, feminist legal theory, and Critical Race Theory, the Essay highlights some of these limitations. It aims to prompt more searching inquiry into the ways gender constructs inform seemingly genderneutral areas of First Amendment law. The Essay identifies two problems revealed by the responses to the Charlottesville events. First, it posits that our free speech jurisprudence was, as a matter of history, created in a “man’s world” with limited female participation. As a consequence, First Amendment doctrine encodes certain gendered cultural assumptions that assume a close relationship between passionate political protest and violence. This standard appeared to have required Charlottesville officials to protect protestors’ speech up to and until it constituted a call for immediate violence, or amounted to a concrete threat of tangible harm. This approach, in effect, subsidizes the interests of a specific identity construct called “protest masculinity,” which sociologists have recognized as a threat to minority communities and society more generally. The Essay argues that free speech doctrine focused on incitement and “true threats” of violence as the primary threats to democracy fails to adequately credit the harms inflicted by other forms of political intimidation.

Second, the essay shows that our traditional doctrinal focus on individual rights—rather than community concerns—is masculine-gendered, and has tangible consequences for the quality of American political debate. It argues that First Amendment law needs more nuanced constructs that can accommodate the various fiduciary duties government officials have to local residents, stemming from captive audience considerations, including being used as props, foils, or forced witnesses to intentionally demeaning and traumatizing public speech. It emphasizes the need for a doctrine that permits a historically contextualized inquiry into targeted attempts at intimidation, as this approach would far better subsidize the expression of free speech interests that are valuable to democracy. The Essay concludes by examining areas of First Amendment doctrine that could be reimagined with more sensitivity to the risks posed by hidden masculinity norms. It shows that existing underdetermined and underdeveloped First Amendment doctrinal concepts can be interpreted to address fiduciary and communitarian interests. More broadly, the Essay claims that the time has come for First Amendment scholars to face the hidden gender norms in our doctrine, and to raise questions about how these standards compromise political debate. Once these norms are revealed, scholars can have far richer conversations about how First Amendment doctrine can be improved to ensure full participation by a broader range of speakers.