E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Writing in 1943, Dr. Charlotte
Silverman, a researcher at the U.S. Children’s Bureau, argued that one
troubling consequence of the absence of fair maternity leave policies in workplaces
was that, faced with the prospect of losing
their jobs, more women were choosing to have abortions.Better leave policies, she argued, would mean
fewer abortions.
Five years later, in the aftermath
of World War II, when a congressional subcomittee held hearings on a bill that
would have guaranteed paid maternity leave to female government workers,
Genrose Gehri, the director of a home for unmarried mothers, was questioned about
whether paid maternity leave would encourage more women to avoid marriage. Gehri dismissed these concerns. “I know that every time such a bill is
considered,” she testified, “there is always the fear lest the unmarried be
included in these benefits, that illegitimacy will be encouraged. I think there is no need for such a fear as
that. The unmarried girl who has a second
child in my judgment, is a sick person.”
* * *
Today, we tend not to reason about
abortion and marriage as intimately connected to parental leave policies. This was not always so—I offer the above
historical tidbits for a quick peek at alternate ways of reasoning about
women’s family and work choices.
Our constitutional law is one force
that has helped pull these areas of family regulation away from one
another. In my comments, I want to ask
what we would learn if we started to move these strands of reasoning back
together. Thinking about Roe and Lawrence
together is part of that process, but I think we can go further.
“The View from Roe’s 40th Anniversary and Lawrence’s
10th Anniversary” offers a particular perspective on families, as
well as a particular perspective on the relationship between families and liberty/equality
reasoning. But consider how our
perspective on the many points of intersection among family/liberty/equality
questions might be altered if we broadened our lens and gazed at the family
from a viewpoint that included, not only Roe and Lawrence, but
also two additional cases with remarkably similar anniversaries: Cleveland
Board of Education v. LaFleur (decided the year after Roe) and Nevada
Department of Human Resources v. Hibbs (decided the very same term as
Lawrence). In LaFleur, the
Supreme Court struck down mandatory maternity leave policies as a violation of
the Fourteenth Amendment’s Due Process guarantees. The Court held that such policies violated a
pregnant teacher’s liberty interests and penalized that teacher for her
decision to have a child. In Hibbs,
the Court held that Congress had the power to pass the gender-neutral leave
provisions of the FMLA under Section Five of the Fourteenth Amendment because
they were a congruent and proportional remedy for a history of state action
counter to the guarantees of the Equal Protection Clause—specifically,
maternity-only leave policies.
When we add LaFleur and Hibbs to the
mix, work becomes a key site where the constitutional dimensions of the family
are defined. And broadening our lens allows us to ask additional questions about
the Constitution and the family that are harder to see if we consider only Roe and Lawrence. For
example:
What if our liberty jurisprudence protected
not only a right not to procreate, but also a more robust right to procreate? What would that mean for how we think about
both liberty and equality within the family?
What if our
constitutional reasoning broke down the old “separate spheres” and understood
the workplace alongside the home, work alongside sexual intimacy, as the key
cites where the familial liberty and equality are defined?
And how would
we think about the liberty- and equality-based limits on family regulation if
we considered abortion, marriage, and parental leave—as well as the connections
among these family-defining policy arenas—as related sites of family
definition?
Ariela R. Dubler is George Welwood Murray Professor of Legal History at
Columbia Law School. You can reach her by e-mail at ariela.dubler at law.columbia.edu