April 26, 2012

For the first time, a Supreme Court opinion uses the word "feminist."

The case is Coleman v. Court of Appeals of Maryland, which came out this year on March 20th. There are 19 other Supreme Court opinions where the word "feminist/s" appears, but only in the name of an entity like "the Feminist Majority Foundation" or the "Feminists for Life of America" or (once) in the name of a cited law review article.

The article is "The Victim In a Forcible Rape Case; A Feminist View," cited for the proposition that "Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage," in the case that says it's cruel and unusual punishment to impose the death penalty for rape. Interesting, isn't it, that it took "A Feminist View" to see that "Rape is very often accompanied by physical injury"? Often? Accompanied? Rape is a physical injury! "Can also inflict mental and psychological damage"?! Can? Do you really have to hedge it?

Anyway, the actual use of the word "feminist" occurs in a dissenting opinion written by Justice Ginsburg. She is explaining why she thinks that Congress had power under §5 of the 14th amendment to enact the self-care provisions of the Family and Medical Leave Act of 1993. To fit the §5 doctrine, the law needs to be portrayed as some kind of remedy for a 14th Amendment rights violation, but both males and females use sick leave, and getting sick leave doesn't seem to be about alleviating unconstitutional sex discrimination.

But Ginsburg says the law had roots in a California effort to require pregnancy or childbirth leave to women:
The California law sharply divided women’s rights advocates. “Equal-treatment” feminists asserted it violated the Pregnancy Discrimination Act’s (PDA) commitment to treating pregnancy the same as other disabilities.... “Equal-opportunity” feminists disagreed, urging that the California law was consistent with the PDA because it remedied the discriminatory burden that inadequate leave policies placed on a woman’s right to procreate.
So the first time a Supreme Court Justice uses "feminist," she's talking about 2 types of feminists, the "'equal-treatment' feminists" and the "'equal-opportunity' feminists." Ginsburg refers to the debate between the 2 factions about whether gender-neutrality or special accommodations better served the interests of women. For example Prof. Eleanor Holmes Norton testified that if employers "provide something for women affected by pregnancy that they are not required to provide for other employees [it] gives fodder to those who seek to discriminate against women in employment."



By the way, the word "feminism" only appears in one Supreme Court opinion, and that was back in 1968, in a case called Ginsberg v. New York. (Ginsburg... Ginsberg... just a coincidence.) But the word appears only in quoted material in the appendix to a dissenting opinion by Justice Douglas (who didn't agree that the state could prosecute a man for selling a "girlie" magazine to a minor). Douglas quotes J. Rinaldo, "Psychoanalysis of the 'Reformer'":
In our own day we have reached another of those critical periods strikingly similar in its psychological symptoms and reactions, at least, to decadent Rome. We have the same development of extravagant religious cults, Spiritism, Dowieism, "The Purple Mother," all eagerly seized upon, filling the world with clamor and frenzy; the same mad seeking for pleasure, the same breaking and scattering of forms, the same orgy of gluttony and extravagance, the same crude emotionalism in art, letter and the theater, the same deformed and inverted sexual life.

Homo-sexualism may not be openly admitted, but the "sissy" and his red necktie are a familiar and easily understood property of popular jest and pantomime. It is all a mad jazz jumble of hysterical incongruities, dog dinners, monkey marriages, cubism, birth control, feminism, free-love, verse libre, and moving pictures. Through it all runs the strident note of puritanism. As one grows so does the other. Neither seems to precede or follow.
Crazy stuff. Dog dinners, monkey marriages, cubism, birth control, feminism, free-love, verse libre, and moving pictures....

Man, I need to do word searches in the Supreme Court opinions more often.

Dog dinners. I did not go looking for that.

30 comments:

Alex said...

I agree, real forcible rape should carry the death penalty. Without question. For Whoopie, that's "rape rape".

James said...

Ginsburg refers to the debate between the 2 factions about whether gender-neutrality or special accommodations better served the interests of women.

Erm, wouldn't the interests of women be best served by forbidding men from holding office or running in elections? Or by requiring men to pay money to women?

Kirby Olson said...

I wish you'd said more about the two factions and which said you backed, if you did back a faction. Special treatment versus equal opportunity, is that what you said? Who belongs in these factions, and are there other factions too? Just curious.

Is this then the first time that feminist factions are looked to as legal authorities to which the supreme Court should listen?

David said...

Rape is (always) physical injury? Is this true under the newer, more broadly defined definitions of sexual assault? If my undergraduate son unwantedly touches a coed "down there" (mistakenly thinking he was wanted and not having had her fill out a permission slip), is there a physical injury? What's the difference between unwanted touching, sexual assault and rape, if any?

I will admit to now knowing the details of the elements of these various crimes. Of course neither does any person, not matter what they are presumed to know.

This is why we have TV personalities parsing between "rape" and "rape rape," and Supreme Court Justices asserting that only some kinds of rape involve physical injury.

Confusing, aina?

Bender said...

Interesting, isn't it, that it took "A Feminist View" to see that "Rape is very often accompanied by physical injury"?

Not sure what the issue is here.

At common law, long before feminist tracts, rape was a crime against the person, that is, an injury to the dignity of the person.

With respect to physical injury, it has long been the rule that physical injury is NOT necessary to the offense, that only penetration is necessary, no matter how slight. If there is physical injury, however, that may be an aggravating factor.

edutcher said...

First mention of Feminism, huh?

As Hatman might say, maybe it means they see it as an unserious, joke concept.

The idea that death is a cruel and unusual punishment for ruining a woman's life is what's really an unserious, joke concept.

chuck b. said...

We have a picture of the Doggie Diner in our kitchen.

bagoh20 said...

If a couple are heavy petting and the male proceeds to penetration, against her clearly indicated refusal, then I agree that is rape, but "physical injury"?

paul a'barge said...

Feminists are Sociopaths

Smilin' Jack said...

I agree, real forcible rape should carry the death penalty.

Yeah, every other day you read about some poor guy exonerated of a rape conviction by DNA evidence after 20 years in prison. That makes us look bad. We could feel so much prouder of our society if we'd executed him; then no one would ever know.

bagoh20 said...

I think it is dangerous to look at rape itself as a physical injury. Any injury would be in addition to the rape.

Lets say a dentist puts a patient to sleep and has sex with her and the patient is unaware that it ever happened. No injury, but certainly a rape and a heinous crime even without any injury.

It's a category all by itself - a violation of a person's body - a theft of the most personal of property and impossible to make restitution for or mitigate. In this way it's similar to a murder because it's irreversible.

bagoh20 said...

I'm a big proponent of capital punishment, but not for rape or anything short of first degree murder.

A rape certainly steals a lot from a person, but not everything like a murder does.

Men are being raped by the thousands in prisons right now. And probably many many thousands live with that in their past. I doubt if many would prefer to have been murdered.

Beldar said...

"Dog's breakfast" is a fairly common idiom, I think. I'm not familiar with "dog dinners."

traditionalguy said...

Interestingly the Georgia rape statute still makes it a capital offense, and therefore bail pending trial is not a right. The SCOTUS has defanged death penalty from rape because they don't care as much about women as we did 40 years ago.


But the incarceration until trial is left over for traditionalists.

Beldar said...

Hrmmm, some googling suggests that both "dog's breakfast" and "dog's dinner" are more common as British and Australian slang. Many of the explanations suggest that the terms refer to something so badly messed up that it would be well-regarded only by someone willing to accept anything, and that it originally referred to the results of massive cooking mishaps, with the resulting dish fit for none other than dogs.

My impression had been that the idiom referred not only to something messed up, but something containing surprising components in juxtaposition -- the results of dogs' willingness to mouth and often swallow amazingly outrageous things (including their own and other dogs' poop). I may, however, be conflating "dog's breakfast" with "dog vomit" -- the latter often containing a surprising variety of unappetizing things, which dogs nevertheless are inclined to re-ingest even after vomiting them up the first time.

dbp said...

I don't think it is cruel and unusual punishment but probably very bad policy to have the death penalty for rape.

If you are facing death either way, what do you loose by killing the victim? It certainly reduces the chances of being caught since the victim is usually the only witness.

An expected result of the death penalty for rape would be less rape-rapes and more rape-murders.

Beldar said...

Re capital punishment for rape:

In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Supreme Court held, via a 5/4 majority opinion written by Justice Kennedy (no relation to the rapist-petitioner), that the Louisiana statute which permits the death penalty for those who rape children is unconstitutional because it violates the Eighth Amendment's prohibition against cruel and unusual punishment. The reasoning employed by Justice Kennedy's majority opinion is particularly soft-headed -- amounting to "Let's do a head-count of the states today to see what the Eighth Amendment means!" -- so my response to the holding is: Dog bollocks!

Penny said...

Death penalty for rape is likely to get many more women killed.

If the punishment is the same, then why leave behind someone who can testify against you?

Penny said...

Sorry, was typing as dbp was pressing "enter".

Beldar said...

The 1977 case that Prof. Althouse linked, Coker v. Georgia, involved a death sentence for the rape of an adult woman, and didn't purport to decide whether capital punishment is constitutional as a sentence for the rape of a child.

jimbino said...

The fact that unwanted touching is called an "injury" provides fodder to the claim that abortion at any time is a woman's prerogative in self-defense.

Attila Girl said...

Unwanted intercourse can range from merely unpleasant to unbelievably painful.

And the worst of it is what happens to the ovaries, which are nearly as sensitive as a man's testes, when there's overpenetration. (And this can occur even with consent, if the man is particularly well-hung, and/or enters from the rear, "doggie-style." That can create blinding pain, and in that position the woman has little control over how deep the penetration is. At that point she can only verbalize that it's painful, and withdraw from the act if the man doesn't ease up.)

I've experienced a lot more pain from consensual intercourse than from the one time I was date-raped.

Chuck66 said...

Better put some ice on that.

Chuck66 said...

"Death penalty for rape is likely to get many more women killed.

If the punishment is the same, then why leave behind someone who can testify against you?"

I wonder if Bill Clinton would have murder Juanita Broaddrick after he raped here.

James Pawlak said...

As to "equal employment opportunity" for women, our rapidly changing technology demands that we ask: Did all applicants "keep current" at the same level?

leslyn said...
This comment has been removed by the author.
Canuck said...

"The case cited was about how to view pregnancy. Is it a disability (equal opportunity) or is it just another medical condition (equal treatment-. Correct me if I have over simplified. But my point is:"

No that's not what happened in this case.

Actually, this case decision is wacko. Pregnancy wasn't covered as a medical condition & the court agreed that didn't constitute gender discrimination.

Why? Because men can't get pregnant! And the insurance agency argued pregnancy is natural, not a medical condition. It's not an illness, so who needs to see a doctor for the delivery or for prenatal care? The court agreed.

Equal Opportunity --
Pregnancy is a medical condition. Pregnancy has to be covered because it is a medical condition and women and newborns can, like, die if it's a breach birth.

Equal treatment --
Because men don't get pregnant means insurance agencies don't have to cover delivery & pre-natal care.

So go squat and give birth behind a tree or something. Pregnancy is natural, so get over yourself - stand and deliver without medical attention - it's not an illness.

It's a crazy decision. For a fun read check it out.

Squid said...

...treating pregnancy the same as other disabilities...

I'm just curious as to how many "disabilities" have whole industries where people pay thousands of dollars for the privilege of getting disabled?

dbp said...

"Eleanor Holmes Norton testified that if employers "provide something for women affected by pregnancy that they are not required to provide for other employees [it] gives fodder to those who seek to discriminate against women in employment.""

The problem is making it a requirement. Why should the government be sticking its nose into a private relationship between employer and worker? How is this really different than questioning why the CEO makes more than the Janitor? In the absence of requirements, companies would offer these benefits in order to attract talent and retain it.

ndspinelli said...

Crack bait didn't work this time.