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Archive for May 2009

The issues raised by Hoyt v. Florida (1961) and the subsequent case of Taylor v. Louisiana (1975) was rather volatile in the 60s and 70s.  The question:  Can women serve on juries in America?     The answer:  I think not.  In addition to the state of Florida, this issue was one that was facing many other states in the period.  For example, Mississippi allowed women to be jurors by legislative action (actually “accident”) in 1968.  Senator Jean Muirhead, who truly understood how the legislature worked, added an amendment at the “tail end “ of discussion on a particular statute.  This amendment struck the word “male” from the Mississippi juror qualification statute.  The amendment was passed, generally because no one else in the Senate had picked up on what she was doing.  Flummoxed when he realized what had happened, Senate President George Yarborough held the action over to be reviewed the following day.  The measure passed again, but again, truly by accident.  Other captivating issues were capturing the attention of the Mississippi Senate and House and savvy Senator Muirhead had perfect timing on both days. 

Former Chief Justice Lenore L. Prather, the first woman Mississippi Supreme Court Justice and first woman Mississippi Supreme Court Chief Justice, who served as a City Judge in West Point, Mississippi, her hometown, and as Chancellor in the Fourteenth Chancery District of Mississippi before being appointed to the Court (on the same day that the United States Supreme Court granted Joe Hogan the right to enroll in the “W”) often reminded me that she was a judge before she could serve on a jury.  Had Jean Muirhead not understood legislative workings (she had been a legislative staffer and staff attorney long before she ran for and became a Senator) Mississippi certainly would not have “beaten” Louisiana in the effort to offer women the opportunity to approach civic duty by serving on juries. 

I would argue that the three most compelling civic duties are:  voting, jury service and military service.  American women obtained the vote in 1921; American women were universally “allowed” to serve on juries as a result of Hoyt v. Florida, even though the case condoned an absolute exemption from duty for women at the woman’s option.  Finally, the Women’s Armed Services Integration Act of 1948 ensured women a place in the military services.  Women may volunteer to serve in the armed services of the United States, but they cannot be placed equally in all positions.  However, women are not required to register for conscription in the event of a need for a draft, per Rostker v. Goldberg (1981), the first significant gender-related case rendered by the United States Supreme Court after the Reagan Revolution, affording military duty at a woman’s option.

Society, custom and mores can deal a lethal blow to democracy, even in this most democratic of countries.  Initially, many of the women in the first wave of feminism assumed that the ability to serve on juries came in tandem with voting rights secured by the Nineteenth Amendment (most jury pools came from voter rolls). They soon found that when and if the issue was raised, the outcome was often to preclude women from jury duty.  The reasons cited seemed to be parochial and protective.  Women should not be in the tangle of courthouses, exposed to a criminal element, lurid facts and disgusting situations.  Moreover, women needed to be at home – caring for their children, preparing for the homecoming of their husbands after a hard day of labor.  It was the sort of duality that often shaped arguments which precluded women from various opportunities.                 

 The interesting facet of the Taylor case is the Court’s condoning of the Florida statute which does not “exclude” women but gives a privilege to women to decide whether to serve.  Likewise, the laws in this country up to today do not “exclude” women from military service but give a privilege to women to decide whether to serve.  And of course, voting is always a privilege and one has only to look to voter statistics to determine that many women (and men) having the privilege to register to vote, do not, and having the privilege to vote, do not.  Yet voting, jury duty and military service are not privileges of citizenship but rights of citizenship.  These civic responsibilities – voting, jury duty and military service – were historically treated as rights when associated with African American men.  When extended to white women, they became privileges rather than rights.

What has been slowly extended to women in the 20th century as a privilege was afforded to African American men in the 19th century as a right.  Strauder v. West Virginia, 100 US 303 (1879) declared that the ability to serve on juries was a civic right that was guaranteed to black men by the 15th Amendment and the equal protection clause of the 14th Amendment; to do otherwise would suggest that blacks men were inferior to white men.  Neal  v. Delaware, 103 US 370 (1880) tied electoral status to jury service, as state legislation generally does as well.  This line of reasoning was developed by the Court prior to the passage of the 19th Amendment.  However the reasoning in Strauder and Neal, which could have been applied to civic responsibility of women during the entire 20th century, was largely ignored.  Why?  The nation was forced to take on the protection of the rights of black males in a way very different from the nation’s interest in protecting the rights of women.  Indeed, the majority of legislation passed immediately after the Civil War could be construed to protect the rights not just of black males but of all citizens of the nation.  It was the culture of the 20th century which prohibited women’s vigorous participation in civic responsibility.

Interestingly, when the US Supreme Court finally spoke to women on juries, it was not an application of positive law.  While the Court, in the late 19th century, recognized that African American men’s status as electors implied the political status that brought with it other civic rights and responsibilities, such as the right to serve on juries, the same logic was not applied to women’s search for civic opportunity in the 20th century.  To the contrary, when women found unqualified inclusion in jury service, there was no focus on the woman’s civil and civic right to serve.  Rather, women were included in jury venires as a matter of right because of a defendant’s 6th Amendment right to a jury which reflected a cross-section of the community.  The US Supreme Court has never articulated a woman’s political and civic right to participate in political governance through jury service.

 We cannot ignore that many women chose not to participate in political governance.  Many women sought the “protection” that social custom gave, and were threatened by those women who felt differently.  But the clarity of Justice Douglas’s language in the Ballard case (“the two sexes are not fungible”) points not only to equity and equality but points to the difference that the culture has long understood and acted upon. 

Regardless of whether women were called to serve on juries or those who, if called, chose to serve, those who are acquainted with the legal system understand that a jury pool and a jury venire are quite different animals.  Juries are created by challenges – for cause and peremptory.  Peremptory challenges can be for any reason or no reason – and there is no reason required.  It was in the last decade of the 20th century that the Supreme Court of the United States ruled that peremptory challenges could not be used on the basis of gender – meaning that the use of peremptory challenge could not be used simply to exclude women (or men) from a jury venire.  This “backwards” recognition – that the rights of a defendant demanded the inclusion of American women on juries, rather than any recognition of the rights of women – has insured that women will be on juries in the future.


The case of Mackinzie v. Hare, 239 US 299 (1915) is another case of interest to women.  This opinion’s author was Justice McKenna, who was nominated for a position on the Supreme Court in 1897 and confirmed by the U. S. Senate in 1989.  Justice McKenna served until 1925.  He retired in that year after being visited by Chief Justice Taft who confronted him with his lessened ability to perform the work required of a Justice of the Court.  [It is interesting to note that Justice McKenna is not known for the quality or quantity of his work.  Historians have credited him with authoring only two “important” opinions, one which affirmed the constitutionality of the Pure Food and Drug Act of 1906 and one which affirmed the constitutionality of the Mann Act (1914). 

Mackenzie v. Hale is an extraordinary opinion which is certainly “important” to over 50% of the American public.  So I would add it to the “important opinions” that the Justice authored.  It must be remembered, however, that in authoring a Supreme Court opinion, a justice does not write alone.  While the document is his, Justice McKenna  has reached consensus with his colleagues and they agree with his reasoning and legal application to the facts of the case.  In the Mackenzie case, there was a lone dissent, and it was on procedural grounds so the nine justices were as one in 1915 in when they upheld the Citizenship Act of 1907.

The Act which the Mackenzie case upheld was only 8 years old at the time of its challenge.  The act’s purpose was codification of derivative citizenship for women.  Derivative citizenship was a creature of common law in the sense that a married woman became one with her husband in sense of political identity.  The act simply legislatively redefined all American women as a member of their husband’s race, ethnicity and nationality. Thus, if a woman married a foreign gentleman, she was deprived of her birthright, American citizenship.

Contemporary scholars suggest that the act was passed to guard the social desire of the majority of the population at the time to refrain from mixing races in American marriages.  However, similar issues are retained in American polity as reflected by the relatively recent case of  Nguyen v. Immigration and Naturalization Service, 533 US 53 (2001).  I would submit that this suggests that the social desire apparent in 1907 still remains.

Perhaps it is understandable that the Cable Act of 1922, which in some deliberate ways remedy the offense of the Citizenship Act of 1907, is an act that is discussed with women as the first legal recognition of an American woman as a separate political entity from her husband.  It is rarely, however, suggested that the Cable Act had limitations (such as if prospective husbands were Japanese or Chinese) – again predictors of the disapproval of mixed marriages.  It must be suggested, however, that men came back from World War I (prior to 1922), as well as World War II, Korea and VietNam with war brides.  Different consequences obtain, as would be expected for these men who made the sacrifice of military service.  Likely, while war brides are not often “approved of” by the receiving family, the community as a whole understands the fact that this woman is seeking a better life for herself and may often be kind and welcoming.  (It is a bit of the NIMBY analogy.)

The Nguyen case considered 8 USC 1409, a statute which governs citizenship of persons born to a U.S. citizen and a non-citizen, particularly when the parents are unmarried and the child is not born in the United States or one of its territorial possessions.  Essentially, the application of section 1409 is dependent upon whether the citizen parent is the mother or father.  The question argued before the Court was “whether the statutory distinction is consistent with the equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment”.  Amazingly, by acknowledging that indeed the statutory distinction IS CONSISTENT with the equal protection clause, the Court acknowledged that “…a mother must be present at birth but the father need not be….” and suggests that to fail to consider the basic biological differences makes a guarantee of equal protection “superficial, and so disserving” suggesting that the “difference between men and women in relation to the birth process is a real one….”

Justices O’Connor, Souter, Ginsburg and Breyer dissented, suggesting that for three decades the Supreme Court had applied heightened scrutiny to legislative classifications based on sex.  Justice O’Connor, writing for the dissenters, suggested that section 1409, on its face, creates a difference solely on account of the sex of similarly situated individuals, and she described this as “patently inconsistent with the promise of equal protection of the law.”  The minority further argued that the majority decision “represents a deviation from a line of cases in which we have vigilantly applied heightened scrutiny….[we] trust that the depth and vitality of these precedents will ensure that today’s error remains an aberration.”

The question that must be asked, of course, is whether race and gender remain guiding principles in the application of due process.  By any reasonable reading of the Mackinzie and Nuygen cases, one must conclude that they do and that these guiding principles are not, unfortunately, mere anomalies.  Perhaps the cigarette advertiser was mistaken when it suggested:  “You’ve come a long way, baby!”



[1] Nguyen v. Immigration and Naturalization Service, 533 US 53, 57 (2001).

[2] Id. at 63.

I think I have mentioned that I took a couple of classes in women’s studies last spring.  One of the women I learned about in these courses was Sarah Osborn. The text included testimony that Osborn submitted to Congress in order to obtained a veteran’s pension as a surviving widow of a veteran.  This testimony was offered before the Court of Common Pleas of Wayne County, New Jersey.  Dann notes that the testimony is by way of deposition, meaning that it is not a formal court proceeding, but an evidentiary proceeding in which the deponent can testify independently and respond to questions asked of her by a magistrate or other court offcer.

            In seeking a widows’ pension, Osborn was following established procedure by appearing at the Court of Common Pleas. Procedure required the veteran to appear in person before a court of record in his state of residence in order to give evidence that he had actually served in the Revolutionary War.  A veteran’s widow was required to do the same.  In coming before the court, the widow was to prove that her husband was a veteran of the Revolutionary War and that they were legally married.  Osborn’s testimony may have been more compelling than most because from her clear recollections, she deposes that she was as much of a campaign veteran as her husband had been, beginning in West Point and working with her husband as a commissary guard, removing to Philadelphia, Baltimore, and sailing up the James to Yorktown, witnessing aurally, at least, the surrender of Cornwallis.

            The testimony of Sarah Osborne corroborates the folklore surrounding many women who were considered camp followers such as Molly Pitcher and Deborah Sampson. Further, it defeats the concept of camp followers utilized by detractors to suggest that the women who followed along on campaign were merely prostitutes.  Osborn, Pitcher and Sampson were true veterans.  Osborn, wife of the commissary guard, performed many of the duties associated with the responsibilities of the commissary.  Pitcher, the wife of an artillery man, was noted for serving water to the soldiers in her husband’s brigade until he died in the line of fire, when she put down her pitcher and began operating his artillery piece.  Legend has it that Sampson actually dressed as a soldier and used an assumed male name, but was instrumental in conveying messages between officers of rank.  It seems that both Osborn and Sampson had at least one encounter with General Washington.

            Osborn’s deposition was meant for one purpose, and one only:  to obtain a pension for herself as the widow of her husband, a Revolutionary War veteran.  While we can only speculate on the truthfulness of the information contained herein, there are several factors that lend her testimony veracity.  First, as a deponent, she would be required to swear under oath before the magistrate.  Second, penalty of perjury was a more significant deterrent in the 19th century than it later became.  Finally, the testimony of Osborn’s exploits in the war are consistent with duties that would be associated with a commissary attendant such as her husband.  The commissary brigade would be responsible for the obtaining and delivery of  food.  As we know, there were great food shortages in Washington’s army, due to dishonesty, incompetence, deflation of colonial currency and the fact that the British could purchase using bullion.  The Continental Congress required Washington “to victual at the continental expense all such volunteers as have joined or shall join the united army.” Included in the number of those who had need of victualing – although not necessarily legal entitlement — were prostitutes as well as wives and children of the soldiers. The wives such as Sarah Osborn provided the cooking, as well as whatever sanitation was available. While General Washington complained that women and children were “a clog upon [his] movement” and would not allow them in Army wagons, he also realized their worth to his troops, and that men who had their wives and children with them would not desert.  In December of 1782, Washington issued a General Order which provided that, for every 15 men in a regiment, the regiment would be provided 16 rations, therefore allowing at least a ration for one woman or child with every 15 men.

            A consideration of Sarah Osborn’s testimony suggests that there must be other similar documents available that would corroborate the positive contributions of camp followers.  For example, in November of 1901, there remained four (4) widows and five (5) daughters of Revolutionary War veterans on the pension rolls of the United States.  [The Genealogy Trails History Group, included the oldest (a daughter) at 101 and the youngest (a daughter) at 80.]

            Sarah Osborn is one of the many unsung heroes of the Revolutionary War who lived her life without recognition of her contributions, except within her own family and community.  While her testimony reminds us that General Washington acknowledged her, it was to inquire as to her level of fear, no doubt because of her gender and because Washington was a man of his era.  Osborn seems to have demonstrated to Washington that she was as unafraid as he, who was noted for his fearlessness and even recklessness in leading his troops, when she responded:  “…the bullets would not cheat the gallows…” — no doubt making a lasting impression on the General with her clarity of understanding the efforts of all engaged in the struggle.

Last week I was blogging about the 5 cases within Michael Trachtman’s 34 greatest hits that had impact on women’s issues.  The last one that I listed was Bush v. Gore (2000).  The reason?  That decision allowed Bush to assume the presidency in 2001. 

There is certainly room for much criticism of the Court’s majority opinion.  Bad facts make bad law.  Critics as significant as Laurence Tribe, probably the nation’s most respected constitutional expert and Harvard Law professor (and who, in this case, was one of the attorneys in the Gore camp) opined that the opinion in Bush v. Gore “…cannot be grounded in any previously recognizable form of equal protection doctrine.”   Harvard Law professor Randall Kennedy characterized the opinion as a “hypocritical mishmash of ideas.”  Sanford Levison, a law professor at the University of Texas, uttered words with which many Democrats and Republicans agreed when he said that the opinion was easily explainable — the Republican Justices intended to “assure the triumph of a fellow Republican who might not become president if Florida were left to its own legal process.”

Two observations that I make illustrate why I think that Bush v. Gore is so important for women’s issues.  Preliminarily, the opinion cleared the way for Bush to become president and allowed him to make appointments (including Supreme Court appointments) that might not be in the best interests of women’s rights and liberties.  Secondarily, the opinion capitalized on how very partisan our country has become — even in the “independent” branch of government in which the “rule of law” should prevail.  As those who study democracy understand, the value of democracy is the protection of the rights of the minority.  When even the Supreme Court is hysterically partisan (and Justice Stevens, in his dissent, verified this:  “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear.  It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”), things bode well for none of us.  When the Supreme Court is hysterically partisan with a Republican bent, it could not bode well for women, and the result — the two Bush administrations, did not bode well for women.

Before I finish up with the “top 5 of 34” list of cases, I want to stop for a minute and share some Memorial Day thoughts with you.

I am just beginning to understand Memorial Day.  I’ve been celebrating Memorial Day all my life.  This is my 57th Memorial Day.  I’m the child of a World War II veteran, a World War II purple heart winner, a man who died at age 78 with shrapnel still in his skull and under his left knee cap.  A man who rarely spoke of the war.

Not only am I a child of a World War II veteran, I’m a child of the Vietnam Era, a kid who witnessed the Tet Offensive on TV while studying for Poli Sci 101 tests, a kid who understands all about Kent State, a kid who still cries when she hears Crosby Stills & Nash’s Four Dead in Ohio.

And maybe that’s why I am just beginning to understand Memorial Day.

Growing up in a Texas town, I was raised into patriotism.  To stand when the flag went by.  To place my hand on my heart.  To say the pledge of allegiance.  To sing the Star Spangled Banner – even the high part.  Even in the midst of the Vietnam War – the context of which I really didn’t understand – I still celebrated Memorial Day.  And I thought I understood.  But I didn’t.

 My dad has been dead 10 years now.  He was a bombardier on a B-17, a plane in the Memphis Belle’s squadron.  He was critically injured at 20 when a shrapnel canister exploded in the top turret, where he was manning the gun after the top turret gunner on his crew was killed.  I never thanked him for serving in World War II.  I’ve never thanked anyone for serving in World War II or any other war.

 But thanking is not what Memorial Day is about.  Because those who served in World War II, most of them anyway, didn’t understand Memorial Day either.  And they didn’t do it for thanks.  Mostly, they did it because they were young and were “supposed to” – either compelled by their culture or the draft.  They were young.  They were invincible.  And they served.  And some came home and others didn’t.

Understanding is what Memorial Day is all about.  And when you understand — when you really understand, you will live a life full of  memorial days.  A life full of remembering.  A life full of  thanking.

 If you grew up within the Vietnam Era, you learned from the wrong signals.  Vietnam vets were not fighting for our freedom, our future.  They were fighting for … well, who knows?  Each Vietnam vet had a reason for being there – be it cultural or the draft.  But the overall rationale… I’m not sure any of us yet understands.  The war was tragic.  But the Viet Cong did not threaten my way of life…or sure didn’t seem to.  That domino theory just seemed some wierd kind of rationalization to me, although it made perfect sense to my dad, who used to say that if “they” had left McArthur alone, “we” wouldn’t be in this “mess”.

 Thirty years past high school American History, I am just beginning to understand World War II and thus just beginning to understand Memorial Day.  I’m just beginning to understand Pearl Harbor and Normandy, Japanese Americans in the Pacific Northwest, the Manhattan Project, and what my Daddy did.

 For all those individuals like my Dad – the “America, love it or leave it!” generation:  Thanks!  You preserved my right to question decisions like Vietnam and Iraq and you have my undying gratitude.

Ellerth was one of those long-suffering women who simply didn’t want to make waves.  She had a good job.  She needed her job.  So she endured constant sexual harassment from her supervisor.  She never reported it to her supervisor, or anyone, for that matter, even though she knew that Burlington had a policy that prohibited sexual harassment.  Eventually, Ellerth couldn’t stand it anymore and quit. After she quit, she sued Burlington, arguing that due to the sexual harassment that she regularly endured, she ultimately had no choice but to leave the job she liked and needed.

At the trial, Burlington made a reasonable defense.  (1) It had a clear policy prohibiting sexual harassment.  (2)  It didn’t know about the sexual harassment that Ellerth complained of, because she had never reported it.  (3)  It had no reasonable way of finding out about the harassment; Ellerth never complained to anybody.  So Burlington argued that it should not be held liable for the acts of a renegade employer about which it knew nothing.  Burlington won at the trial court.

Ellerth appealed, and eventually the United States Supreme Court agreed to hear the case.  There, Ellerth urged the Court to apply a concept of vicarious liability, which is a basic tenet of agency law.   

The Ellerth case brought two critical rulings to the fore for the future of employers on the issue of sexual harassment.  First, the Court held that in a case where a supervisor sexually harasses an employee and in the process takes a negative employment action against the employee, the company will be liable no matter what — even if the company actively prohibited sexual harassment, had no idea that the harassment was occurring, and had done nothing wrong, per se [vicarious liability].  Second, the Court held that in a similar situation, where no negative employment action occurs, but the employee is faced with working in a sexually suggestive atmosphere which is unreasonably offensive [hostile work environment], the employer will be held liable unless it can prove (1) that it did all it reasonably could to prevent and correct the harassment and (2) the employee failed to take advantage of the preventive or corrective opportunities provided by the employer in its anti-harassment policy.

Enough said.

Is there anyone in America who doesn’t know what Roe v. Wade stands for?

Challenging a Texas state statute which prohibited abortions except when necessary to save the life of the mother, Roe’s case made its way to the United States Supreme Court.  Mr. Justice Blackmun wrote for a majority of 6 justices, ruling that the U. S. Constitution permits a woman to decide for herself whether she wants to terminate her pregnancy. 

Roe is probably the most controversial case in American society today, and it is over 30 years old.  In 1992, the last time that the U. S. Supreme Court weighed in substantially on the issue, it reaffirmed the national commitment to Roe in Planned Parenthood v. Casey.  [Casey challenged the constitutionality of a state law requiring a woman to obtain the consent of her husband prior to obtaining an abortion, a requirement which the Supreme Court found an “undue burden” on the right of a woman to obtain an abortion before the fetus attains viability.

Roe will continue to be the most controversial case in America for years to come — unless something truly unanticipated rears its head at the Court. 

I was in DC for the Obama inaugural, and witnessed one of the rallys which memoralized the 37th anniversary of the Roe decision — as well as one of the rallys that was anti-Roe and anti-abortion.  Those gatherings reaffirmed my belief that Roe remains the most controversial case in America.  The election of Obama over GOP candidates has caused the anti’s to feel a need to work harder and louder.  Obama supports Roe v. Wade and said, on the eve of his inauguration: “We are reminded that this decision not only protects women’s health and reproductive freedom, but stands for a broader principle: that government should not intrude on our most private family matters.  I remain committed to protecting a woman’s right to choose.”

In contrast, President George W. Bush regularly voiced support for anti-abortion activists. In audio remarks broadcast to demonstrators last year, he said biology confirms that from the start, each unborn child is a separate individual with his or her own genetic code.

American public opinion about abortion has been fairly stable in recent decades, with polls nearly always finding a narrow majority saying the procedure should be legal in all or most cases.

May 2009
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