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Civil Rights
University of Michigan School of Law
MacKinnon, Catharine A.

Family:
 
Starting Point:
 
John Stuart Mill, The Subjection of Women 1869
Keep in mind this is a starting point, all of it is relevant to the time period (1869).
“…the existing social relations between the two sexes—the legal subordination of one sex to the other—is wrong in itself…”
How did this condition come about?
Natural relationship: Here, women have a natural disadvantage to men in things like strength and this natural occurrence is exploited and thus social constructs reflect this inequality and laws reflect the social construct.
Power Struggle amongst men (Pride): Those who desire power desire it most over the people near to them who are likely to interfere with individual preference. And those who have the power (presumably men) have facilities to prevent an uprising against that power.
The power differential/inequality between men and women differs from other inequalities because it is grounded in acceptance by women. Further more men seek not only dominance over women, but a willing dominance, and marriage being the destination appointed by society for women they are forced into inequality.   
Problems:
Things don’t change because all causes social and natural combine to make a collective rebellion unlikely. For example, any resistance to the norm of the inequality between men and women would be met with an increased expression of dominance coming from men.  
The laws governing women/marriage are unjust. That which is hers becomes his at marriage but not vice versa. She cannot act without his permission. Children are by law his. Women historically could invoke no law against their husbands. Women had no freedom to divorce.    
The male sex cannot yet tolerate the idea of living with an equal.
Conclusion:
If married life were at all proportional to that of the law “society would be hell upon earth…”
 
Issues:
Focus of the chapter is on the family relationship and whether it can be regarded as a linchpin in how it has been a means to subject women and children to a systematic institution of sexual inequality.  
SC has said that the familial relationship more specifically marriage has been “a basic position…in this society’s hierarchy of values.” “Fundamental to our very existence and survival.” Loving v. Virginia (1967)
Most cultures recognize the family as a law unto itself, visibly in the U.S. laws involving birth control, abortion, and sodomy are classically regarded as “private,” and beyond the reach of the law. Most importantly this division between public and private has been theorized as promoting the subordination of women to men. The dynamics of this private institution manufactures the social hierarchy that inequality is natural.
 
More recently:
With the emergence of the Equal Protection Clause right for women in marriage have evolved. Contractual right for domestic partners have been recognized. Custody is routinely granted to mothers. Women began seeking recompense for marital dissolution. Rape in marriage has become a crime as well battering of women in the family, which were historically off limits to legal intervention. Developments suggest a change in familial relationships tending towards equality, but sex equality rights are far from secured in the family. 
 
Nevada Department of Human Resources v. Hibbs (2003)
Facts: Hibbs worked for the Nevada Department. He requested leave under FLMA, (Family and Medical Leave Act) allowing eligible employees to take leave for up to twelve for 12 weeks to care for the family. Hibbs wife had been in a car accident and he was granted leave. During his leave he was informed that he had exhausted his 12 weeks, when he failed to report to work he was fired. Hibbs sued for allege violations of the FMLA. 
Issue: Is the legislature enacted by congress to broad, or in violation of the Eleventh amendment? Were congressional findings sufficient to enact such a legislative remedy to perceived stereotypes that failed to provide men with adequate leave in these situations?
Holding: Court begins by reaffirming power of congress to remedy violations guaranteed under the 14th Amendment. Court reasons that parental leave policies amongst the states were being administered in a discriminating fashion, and congress was righ to conclude this much. In applying intermediate scrutiny the court upheld the FLMA acknowledging that it was “congruent and proportional” to its remedial objective as required by City of Boerne v. Flores. Dissent: Kennedy argues that the legislation enacted is too demanding on states, and that if congress wanted to remedy the discrimination they could have required equal leave be available for both men and women, rather than mandating a certain policy. 
 
Corbett v. Corbett (otherwise Ashley) 1970
Facts: Plaintiff (male) wanted a divorce and at time where mutual consent was not good enough to dissolve a marriage, sought to prove that the marriage was invalid from the get because the Defendant was a man(who had had a sex change).  
Issue: Should the marriage be dissolved on these grounds, namely because a marriage is classified as a union between a man and a woman, or should the fact that defendant classified herself as a woman be reason to uphold the union?
Holding: The English court reasons that in determining the issue there must be some ground for determining whether a person is a male or a female. In doing so court seeks to establish a definition of “woman.” They establish a biological test, consisting of inquiries into the chromosomal nature and sexual organs of the party, and establish that Defendant is not a woman, because she fails the test. In doing so they acknowledge the Defendant as not a woman for the purpose of marriage because she can not perform the prurposes of marriage…namely reproduction. 
In the Matter of the Estate of Gardiner 2002
Facts: Gardiner appeals summary judgment from the lower court. Gardiner a transsexual male born was married to Marshall a male who had already conceived a son. Marshall died intestate and the dispute is between the son(Joe) and Gardiner both alleging they are the heir to the estate of Marshall. 
Issue: Is the marriage between Marshall and Gardiner legit even tough Gardiner was born a male? If yes estate goes to Gardiner, if no estate goes to Joe. 
Holding: In decided between to distinct lines of cases (1) sex at the time of marriage, and (2) sex at birth the court reasons that the second option is correct. Upon, numerous definitions and recommendations of what constitutes a man and a woman court reasons that a woman is defined as in Blacks as “the sex that produces ova and bears offspring.” Court acknowledges that the terms male and female do not encompass transsexuals, and that a male-to female post-operative transsexual does not fit the definition of a female. Court seems to base their decision on public policy that is to be addressed by the legislature. 
 
Notes on Corbett and Gardiner:
 
Why all the talk of emotional and relational attributes, if the court is merely going to decide on the issue of biology?
In making these distinctions is the court requiring a family to be composed of a male and a female or is this just not considered by the court?
22 States p

ce has been considered and dispensed with as a relative consideration in custody, but can the same be said for sex? Is sex a consideration in these cases although it is not always expressed? Are the best interests of a child naturally gender biased…i.e. is a mother, the stereotypical caregiver, per se the more appropriate custodian? 
 
Legitimacy (Don’t think we were supposed to read this, but whatever it was interesting)
Many laws concerning children including those involving entitlements, inheritance, and support are grounded in a notion of legitimacy of the child.
Men are the gatekeepers to legitimacy, if a child is born out of wedlock a mother has no ability to make the child legitimate in the eyes of the law, but when a father acknowledges the child as his own, or cares for a child, that child gains some sense of legitimacy.
Why do we let what defines a family to be a function of law rather than life itself?
Do these laws discriminate against women?
 
 
Stanley v. Illinois 1972
Facts: Joan Stanley mother of three dies leaving her children and what seems to be a boyfriend of 18 years behind. All three of the kids were the offspring of the boyfriend Peter Stanley. Illinois law said children of unwed fathers, become wards of the state upon mothers death. Peter Stanley appeals saying it has never been shown that he is an unfit father and thus he is deprived of a right granted to him under 14th. 
Holding: Illinois law was in violation of substantive due process, because the law did not further any state interest, and the court was unable to distinguish the facts, from a child be taken from his married dad.  
 
Caban v. Mohammed 1979
Facts: An unwed father challenges a NY statute that allowed unwed mothers to block adoptions of their children, permitting unwed fathers to do so only if the adoption violated the “best interest of the child.” Here, his ex wife and her new husband adopted his biological children without his consent. State justified the law on the grounds that it was in child’s best interest in being adopted, i.e. legitimated, since often the biological father could not be found.
Holding: Court reasons that the impediment to adoption usually is the result of a natural parental interest shared by both genders alike. “another example of overbroad generalizations in gender-classifications. The effect of NY’s classification is to discriminate against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child.” No substantial relationship to the State’s asserted interests. Dissent reasons that acquiring the status of legitimacy is a valid concern of the state. Extensive likes alike not alikes different analysis. “Both parents are equal at the outset, but during the pregnancy the differences between the male and the female have an important impact on the child’s destiny.”
Notes: