November 3

Race, Gender and Justice: Re-thinking Representation
Spring 2002

November 10

 Race/Gender/Sexuality & Citizenship
Monday, April 8, 2002

 

Reading Cott, Nancy. "Justice for All? Marriage and Deprivation of Citizenship in the United States." Justice and Injustice in Law and Legal Theory. Eds. Austin Sarat and Thomas R. Kearns. Ann Arbor, MI: The University of Michigan Press, 1998. 77-97.

Haney López, Ian F. "Restrictions in the Law of Citizenship." White By Law: The Legal Construction of Race." New York and London: New York University Press. 1996. 37-47.

Eskridge & Hunter. "Boutilier vs. INS." Sexuality, Gender and the Law. New York: The Foundation Press, 1997. 170-189.
Goal  To get an appreciation of the way in which gender, race and sexuality complicate the notion of citizenship by looking at how immigration law has treated these characteristics.


We'll discuss the connections between citizenship and the formation of the "nation" through the ways in which regulation  by analyzing Cott.

Nature of marriage law: You should be aware that marriage is a state and local function. The federal government can not "produce" marriages. However the state can impact which marriages occur by denying or bestowing rights on marriages based on the participants. One study by the General Accounting Office after the passage of the Defense of Marriage Act in 1996 found that 1049 statutes in which occurrences of "spouse," "wife", "husband" etc were present. So, for example, this is why the cases involving whether someone can get married or not have all been state cases, initially, though in Loving and Pace they end up before the USSC on claims that the state's actions were offending the U.S. constitution. So, one state can set the age of the participants of a marriage at 13, while another can require blood tests. However, the fundamental right to marry can not be abridged or infringed upon by the states. This is the question which comes up in the only two recent cases to deal with marriage: Zablocki vs Redhail (1978) and Turner vs Safely (1987).

The result  here was  8-1(5 for the fundamental holding, 3 more for the result). Chief Justice Rehnquist was opposed to strict scrutiny being applied because it would infrnge upon "states' rights" to regulate marriage as they wish.

Zablocki v. Redhail (1978)
The Court invalidated Wisconsin's bar to remarriage when one partner has unpaid support obligations from a previous marriage. Emphasizing the state's interference with Loving's right to marry, the Court held that the law violated the equal protection clause by discriminating in the allocation of this fundamental right.

Turner v. Safely (1987)
The Court invalidated Missouri's almost complete bar to marriage by prison inmates. Although the Court deferred to state rules regulating prisoners, it held that denial of the right to marry requires more rigorous justification because the unitive and legal features of marriage are so fundamental in our polity.
Turner is about the reification of a 'fecundity class' of citizens.

(Cott 83): the concept of COVERTURE: a woman upon marriage cedes her legal individuality as well as her property to her husband. Where have we seen examples of this already in class? (The Marrow of Tradition: Major Carteret assuming control over Olivia Carteret’s home)

Can we think of modern manifestations of the concept of coverture?

  1. The assumption of the "male name" by the wife after a marriage occurs. Recall what Wideman says about the ‘power of nommo.’ As student Daniel Feldt says this TRADITION of the woman losing her surname omes from the idea that a marriage is about one clan losing the female and the other clan gaining the female, thus she takes the name of the male clan. Similarly, children born also take the name of the male, o indicate they are also part of the clan. What scripts about property, and ownership are operative here? [Recall the Eskridge & Hunter prologue on marriage regarding a Marxist critique of marriage due to its "exclusvity" and "property" characteristics.]
  2. Marital rape laws: in common law, rape in marriage was an oxymoron. The 1962 Model penal Code [adopted by up to 1/3 of all the states perpetuated the exclusion of marital rape from the criminal law. Virginia (in 1986! [sic]) {do the students know what [sic] means?}did not criminalize unconsented intercourse between husband and wife unless (a) the spouses were living separate and apart and (b) the defendant caused serious physical injury to the spouse by use of force or violence (ESKRIDGE & HUNTER 992).
  3. More broadly, Foreman’s idea that coverture is about ownership of both the body and of the property of the woman. "rule of thumb" If what you do in the privacy of your own home to yourself is outside the law, then what you do to your wife is part of what you do to yourself. The 5th amendment which prevents self-incrimination is reflected in the marriage exemption in evidentiary proceedings [spouses have right to avoid subpoenas to testify against each other].

QUESTION (10-minute in-class exercise)
How does Cott’s piece expose and examine issues surrounding marriage, miscegenation and citizenship by analyzing these concepts along race and gender lines?


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