Showing papers by "Georgetown University Law Center published in 1990"

Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment

Abstract: During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute that criminalizes sexual assault, and punishes it severely, unless the victim and assailant are married? What could be more obvious than the plain fact, repeatedly documented, that these state laws are derived from a sorry history of discriminatory, misogynist, and hateful denials of a married woman's legal right to equal dignity and respect? Where could one possibly find a sharper example of a state law that explicitly insulates and protects a separate political system of subordination and violence against a group of citizens, and thereby denies those citizens protection of the laws given others? So why has not the Supreme Court held as much?The endurance of marital rape exemptions, despite their apparent unconstitutionality, partly results from the dominant understanding of the meaning of equality and constitutionally guaranteed equal protection. This paper proposes not so much a novel approach to marital rape exemption or to the fourteenth amendment, but rather a new direction of progressive and feminist-informed constitutional arguments. I will urge that we should direct our arguments away from a hypothetical judicial audience and toward a congressional audience. If the dominant understandings of equal protection truly are inadequate, and if judicially developed law has determined the content of those inadequate understandings, then "equal protection" might take on a very different and more helpful meaning if developed in a congressional, rather than a judicial, context. That very different meaning might highlight, rather than obfuscate, the unconstitutionality of the marital rape exemptions. Congress might respond more aggressively than the Court to the unconstitutionality of marital rape exemptions, not only because of the different political compositions of the Court and Congress, but also because equal protection as a political principle guiding Congress might carry a broader meaning than does equal protection as a.legal principle binding the Court.Part II of this essay discusses three contrasting understandings of the meaning of equal protection: the Supreme Court's dominant rationality approach; Professor MacKinnon's proposed dissident "anti-subordination" approach; and what I label the '"pure protection" understanding, which may be closest to the original meaning of the clause. Part III of this essay will then re-examine the constitutionality of marital rape exemptions in light of these competing views of the meaning of equal protection. The essay will posit that even if we accept the traditional, "rationality" model of equal protection, marital rape exemptions are unconstitutional. Part IV of this essay demonstrates that the dominant but inadequate rationality view of equality is largely a product of the adjudicative context in which that theory arose. Part V of this essay urges feminists, over the next decade, not only to continue to press the Court to rule against these laws on the basis of their irrationality, but also to urge Congress to respond to the mandate of section five of the fourteenth amendment by undertaking consideration of a "Married Women's Privacy Act." The purpose of the Act would be to guarantee all women the full protection of the states' laws against criminal assault.

Progressive and Conservative Constitutionalism

Abstract: American constitutional law in general, and fourteenth amendment jurisprudence in particular, is in a state of profound transformation. The "liberal-legalist" and purportedly politically neutral understanding of constitutional guarantees that dominated constitutional law and theory during the fifties, sixties, and seventies, is waning, both in the courts and in the academy. What is beginning to replace liberal legalism in the academy, and what has clearly replaced it on the Supreme Court, is a very different conception - a new paradigm - of the role of constitutionalism, constitutional adjudication, and constitutional guarantees in a democratic state. Unlike the liberal-legal paradigm it is replacing, the new paradigm is overtly political - and overtly conservative - in its orientation and aspiration. Over the last few years, a substantial and growing number of Supreme Court Justices, federal judges, and some theorists, including Raoul Berger, Robert Bork, Frank Easterbrook, Michael McConnell, Sandra Day O'Connor, Richard Posner, and Antonin Scalia, have begun to articulate a profoundly conservative interpretation of the constitutional tradition. There are obviously many differences between the conservative views of each of these theorists. But there is also significant commonality: the conservatives share enough ground and sufficient themes that we can discern, without too much difficulty, an emerging conservative paradigm of constitutional interpretation - what this article calls "conservative constitutionalism." Conservative constitutionalism now dominates the Supreme Court, may soon dominate the federal judiciary, and has already profoundly shaped the constitutional law of the foreseeable future.

Legal regulation of human gene therapy.

Abstract: The adequacy of existing legal mechanisms to regulate clinical trials of human gene therapy is examined. Existing legal controls include the federal Guidelines for Research Involving Recombinant DNA Molecules and federal regulations for the protection of human subjects. Another significant mechanism is provided by judicial oversight, i.e., judicial decisions involving recombinant DNA research. Human gene therapy does raise new issues that still must be resolved. At least two weaknesses exist in the present regulatory system: first, Recombinant DNA Advisory Committee (RAC) only has authority over federally funded research, not work done with private support, and second, RAC is not mandated to focus on difficult ethical issues, e.g., germ-line therapy, that arise from human genetic engineering technology.

Boundaries Dimly Perceived: Law, Religion, Education, and the Common Good

Abstract: Battleground: One Mother's Crusade, the Religious Right, and the Struggle for our Schools. By Stephen Bates. H. Holt 1994. Pp. 365. $24.00. ISBN: 0-671-79358-6. Boundaries Dimly Perceived: Law, Religion, Education, and the Common Good. By Christopher F. Mooney. U. of Notre Dame Press 1990. Pp. viii, 192. $26.95. ISBN: 0-268-00682-2. Catholic Schools and the Law: A Teacher's Guide. By Mary Angela Shaughnessy. Paulist Press 2000. Pp. 192. $8.95. ISBN: 0809-13964-2. Education, Religion, and the Supreme Court. By Richard C. McMillan. Assn. of Baptist Professors of Religion 1979. Pp. 129. $8.95. ISBN: 0-932-18005-1. Everson Revisited: Religion, Education, and Law at the Crossroads (Religious Forces in the Modern Political World). Edited by Jo Renaee Formicola & Hubert Morken. Rowman & Littlefield 1997. Pp. 272. $82.50. ISBN: 0-847-68650-7. Paper. $27.95. ISBN: 0-847-68651-5. Home Schooling and the New Code of Canon Law. By Edward N. Peters. Christendom College Press 1988. Pp.46. $3.95. ISBN: 0-93188829-8. The Influence of the Medieval University on the Latin Church and Secular Government Politics: From the Later Middle Ages to Early Modern Times. By John C. Scott. Edwin Mellen Press 1992. (Pp. NA.) $89.95. ISBN: 0-773-49836-2. And Nothing but the Truth: Real-Life Stories of Americans Defending their Faith and Protecting their Families. By Jay Sekulow & Keith Fournier. T. Nelson Publishers 1996. Pp.276. $19.00. ISBN: 0785-27363-8. Objective, Fair and Balanced: A New Law for Religion in Education. (British Humanist Association). The Association 1975. Pp. 72. (Out of print.) ISBN: 0-901-82509-3. Religion, Education, and the Suspreme Court. By Thayer S. Warshaw. Abingdon 1979. Pp. 99. $25.30. ISBN: 0-687-36006-4. Religion in the Public Schools: A Summary of the Law. By Marc D. Stern. Am. Jewish Congress 1993. Pp. 35. $5.00. ISBN: 9-99484902-6.