Dean, Professor Author Chapters in New “Feminist Judgments” Book
By April Martin
In a new book, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, Dean Laura A. Rosenbury and Professor Berta Hernández-Truyol make the case that American society would be vastly different had landmark U.S. Supreme Court decisions on gender issues reflected a feminist perspective.
Both Rosenbury and Hernández-Truyol spoke on the subject during the 5th Annual Symposium on Constitutional Law held at the University of Akron School of Law in Ohio. The symposium, centered on equality and gender, was part of the U.S. Feminist Judgments book project.
“What all feminist theory (and indeed all the opinions in this book) share is a commitment to identifying and achieving the conditions necessary to enable women to experience full personhood, in all its complexity,” wrote Hernández –Truyol in Feminist Judgments, edited by Kathryn M. Stanchi, Linda L. Berger and Bridget J. Crawford (Cambridge University Press, 2016).
In one chapter of the book, “Justice” Rosenbury rewrote the 7-2 decision in Griswold v. Connecticut, 381 U.S. 479 (1965). The original decision struck down a state ban on contraceptives, holding that the law unconstitutionally encroached on marital privacy. That ruling relied on “penumbras” of protected rights deriving from the First, Fourth, Fifth and Ninth Amendments to find that the state could not dictate how contraception could or could not be used within marriage.
In the revised opinion, penned by Rosenbury, the fictional Court once again struck down the contraception ban, but instead of addressing penumbras, the opinion held that the state statute infringed on individual liberty and perpetuated inequality.
“Personal relationships cannot be divorced from the individual liberty protected by the Fifth and Fourteenth Amendments. Instead, these relationships make individual autonomy possible,” Rosenbury wrote. “In addition . . . contraceptive bans preserve a gendered division of labor throughout society, disproportionately limiting women’s participation in the public sphere.”
Rosenbury ultimately concluded that the statute unduly infringed upon women’s liberty to engage in sexual activity and reproductive planning, rendering women second class citizens in civic life and the market economy.
While Rosenbury’s contribution to the book came in the form of a re-written decision, Hernández-Truyol focused on feminist legal history, theory and methods in her book chapter.
“Feminist legal theory focuses on how gender bias has affected the development of the law and legal structures as well as the different experiences that men and women have with the law,” wrote Hernández -Truyol. “Feminist inquiry unveils the law as being complicit in women’s subordination. Gender bias is not an accident in the law, but rather a central force in its development.”
She points to Justice Ruth Bader Ginsburg’s partial dissent in Safford Unified School District v. Redding, 557 U.S. 364 (2009), as shedding light on how a “feminist lens could change the applicability of precedent.” In that case, the majority granted immunity to an assistant principal who ordered the strip-search of a 13-year-old girl suspected of having ibuprofen, which was prohibited by the school. Justice Ginsburg dissented, in part because of her concerns that her male colleagues were insensitive to the strip-search’s long lasting effects on the girl.
Likewise, Hernández –Truyol emphasized that the United States Supreme Court split along gender lines in the case of Wheaton College v. Burwell, 573 U. S. __ (2014). The all-male majority ruled that the Christian college was not required to follow the Affordable Care Act’s contraception mandate, while the female members of the Court argued that their colleagues’ ruling created a gender inequity in health insurance coverage.
“No judge is a clean slate,” Hernández –Truyol wrote. “All judges have life experiences that shape their perceptions and reasoning.”
For more information on the book visit http://sites.temple.edu/usfeministjudgments/