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Women's Rights in Theory and Practice

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Women's Rights in Theory and Practice Division of United States Studies Women’s Rights in Theory and Practice Employment, Violence and Poverty Division of United States Studies Women’s Rights in Theory and Practice Employment, Violence and Poverty Woodrow Wilson International Center for Scholars Washington, D.C. May 21–22, 2002 ©2002 Woodrow Wilson International Center for Scholars, Washington, D.C. www.wilsoncenter.org WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS LEE H. HAMILTON, DIRECTOR BOARD OF TRUSTEES Joseph B. Gildenhorn, Chair; Steven Alan Bennett, Vice Chair. Public Members: James H. Billington, Librarian of Congress; John W. Carlin, Archivist of the United States; Bruce Cole, Chair, National Endowment for the Humanities; Roderick R. Paige, Secretary, U.S. Department of Education; Colin L. Powell, Secretary, U.S. Department of State; Lawrence M. Small, Secretary, Smithsonian Institution; Tommy G. Thompson, Secretary, U.S. Department of Health and Human Services. Private Citizen Members: Joseph A. Cari, Jr., Carol Cartwright, Jean L. Hennessey, Daniel L. Lamaute, Doris O. Matsui, Thomas R. Reedy, Nancy M. Zirkin WILSON COUNCIL Steven Kotler, President. Diane Aboulafia-D'Jaen, Charles S. Ackerman, B.B. Andersen, Cyrus A. Ansary, Charles F. Barber, Lawrence E. Bathgate II, John Beinecke, Joseph C. Bell, A. Oakley Brooks, Melva Bucksbaum, Charles W. Burson, Conrad Cafritz, Nicola L. Caiola, Raoul L. Carroll, Scott Carter, Albert V. Casey, Mark Chandler, Peter B. Clark, William T. Coleman, Jr., Michael D. DiGiacomo, Sheldon Drobny, F. Samuel Eberts III, J. David Eller, Mark Epstein, Sim Farar, Susan Farber, Joseph H. Flom, Charles Fox, Barbara Hackman Franklin, Norman Freidkin, Morton Funger, Gregory M. Gallo, Chris G. Gardiner, Eric Garfinkel, Bruce S. Gelb, Steven J. Gilbert, Alma Gildenhorn, David F. Girard-diCarlo, Michael B. Goldberg, William E. Grayson, Raymond A. Guenter, Gerald T. Halpin, Edward L. Hardin, Jr., Carla A. Hills, Eric Hotung, John L. Howard, Darrell E. Issa, Jerry Jasinowski, Brenda LaGrange Johnson, Shelly Kamins, Edward W. Kelley, Jr., Anastasia D. Kelly, Christopher J. Kennan, Michael V. Kostiw, William H. Kremer, Raymond Learsy, Abbe Lane Leff, Perry Leff, Dennis LeVett, Francine Levinson, Harold O. Levy, David Link, Frederic V. Malek, David S. Mandel, John P. Manning, Jeffrey A. Marcus, Edwin S. Marks, Jay Mazur, Robert McCarthy, Linda McCausland, Stephen G. McConahey, Donald F. McLellan, J. Kenneth Menges, Jr., Philip Merrill, Jeremiah L. Murphy, Martha T. Muse, Della Newman, John E. Osborn, Paul Hae Park, Gerald L. Parsky, Michael J. Polenske, Donald Robert Quartel, Jr., J. John L. Richardson, Margaret Milner Richardson, Larry D. Richman, Edwin Robbins, Robert G. Rogers, Otto Ruesch, B. Francis Saul, III, Alan Schwartz, Timothy R. Scully, J. Michael Shepherd, George P. Shultz, Raja W. Sidawi, Debbie Siebert, Thomas L. Siebert, Kenneth Siegel, Ron Silver, William A. Slaughter, James H. Small, Thomas F. Stephenson, Norma Kline Tiefel, Mark C. Treanor, Christine M. Warnke, Ruth Westheimer, Pete Wilson, Deborah Wince-Smith, Herbert S. Winokur, Jr., Paul Martin Wolff, Joseph Zappala, Richard S. Ziman ABOUT THE CENTER The Center is the living memorial of the United States of America to the nation’s twenty-eighth pres- ident, Woodrow Wilson. Congress established the Woodrow Wilson Center in 1968 as an interna- tional institute for advanced study, “symbolizing and strengthening the fruitful relationship between the world of learning and the world of public affairs.” The Center opened in 1970 under its own board of trustees. In all its activities the Woodrow Wilson Center is a nonprofit, nonpartisan organization, support- ed financially by annual appropriations from Congress, and by the contributions of foundations, cor- porations, and individuals. Conclusions or opinions expressed in Center publications and programs are those of the authors and speakers and do not necessarily reflect the views of the Center staff, fellows, trustees, advisory groups, or any individuals or organizations that provide financial support to the Center. WOODROW WILSON CENTER SPECIAL REPORT Contents Introduction 1 Philippa Strum Session One: Litigating for Gender Equality, 1970s – 1990s 4 Ruth Bader Ginsburg, “Litigating for Gender Equality in the 1970s” Marcia Greenberger, “Litigating for Gender Equality in the 1980s” Michael Maurer, “Litigating for Gender Equality in the 1990s” Discussion Session Two: Employment 21 Sheila Thomas Judy Lichtman Wendy Williams Jim Williams Discussion Session Three: The Dangers of the New Federalism; 34 the Possibilities in International Human Rights Law Isabelle Katz Pinzler, “The Dangers of the New Federalism” Rhonda Copelon, “The Possibilities in International Human Rights Law” Discussion Session Four:Violence Against Women 47 Leslye Orloff Elizabeth Schneider Sally Goldfarb Donna Coker Beth Richie Discussion Session Five: Poverty and Welfare 68 Dorothy Roberts Duffy Campbell Lenora Lapidus Martha Davis Discussion Appendix I: State Constitutional Provisions Relating to Welfare 88 Appendix II: Participants 99 WOMEN’S RIGHTS IN THEORY AND PRACTICE iii Acknowledgements This conference was supported by grants from THE FORD FOUNDATION THE OPEN SOCIETY INSTITUTE AND THE WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS PLANNING COMMITTEE Rosio Cordoba, ACLU Foundation of Southern California Adrienne Dale Davis, University of North Carolina Evelyn Nakano Glenn, University of California-Berkeley Lenora Lapidus, ACLU Women’s Rights Project Isabelle Katz Pinzler, Project on Federalism, NOW Legal Defense and Education Fund Dorothy Roberts, Northwestern University Elizabeth Schneider, Brooklyn Law School Philippa Strum, Woodrow Wilson Center iv WOODROW WILSON CENTER SPECIAL REPORT Introduction Philippa Strum Division of U.S. Studies n the late 1960s and early 1970s, proponents of gender equality began thinking creatively about how to redefine the legal sphere so as to use I it as a tool in eliminating gender discrimination. One aid in this endeavor was an annual National Conference on Women and the Law (1970-1992), which students at a number of law schools organized to articulate the problem and consider the kind of public policies that might address it. The academics contributed their theoretical analyses; the practi- tioners assessed the theories’ utility as aids to policy-making. Many of the ideas behind both the early work in feminist jurisprudence and subsequent litigation and policy-making in the area of gender equality were honed at the conferences. Although both public policy and the concerns of equal rights propo- nents continued to develop in the last years of the twentieth century and the beginning of the twenty-first, practitioners and scholars organized no similar large-scale thinking and strategizing sessions. Many among the new generation of academics working in the gender equality field, some with- out any background in practice, lack the same kind of ties to practitioners - who in turn are cut off from much stimulating new thinking among scholars. The Division of U.S. Studies therefore decided to bring feminist scholars together with attorneys from organizations such as the ACLU Women’s Rights Project, the National Women’s Law Center, Equal Rights Advocates, NOW LDEF, the National Partnership for Women & Families, the Institute for Women’s Policy Research, the Mexican- American LDEF, and the National Employment Law Project. The purpose of the conference was to foster communication between academics and practitioners, thereby enriching scholarship and giving liti- Philippa Strum is director of the Division of U.S. Studies, Woodrow Wilson International Center for Scholars. The con- ference could not have taken place without the fine work of Susan Nugent, the Division’s Program Assistant. Program Associate Danielle Tarantolo provided major editing and organizational assistance in getting this publication ready for print. Both Susan Nugent and Division intern Aidan Smith furnished invaluable editing and proofreading aid. As with all of the Division’s publications, the credit for publication design goes to Derek Lawlor of the Center’s Outreach and Communications Department. WOMEN’S RIGHTS IN THEORY AND PRACTICE 1 gators both ideas for courtroom strategies and a network of scholars upon whom to call in the future. A planning committee of scholars and activists decided that the conference should concentrate on three major areas: employment, violence against women, and poverty and welfare. An addi- tional session on the problems for gender equality litigation created by the New Federalism and the promises inherent in international human rights concepts and instruments, which cut across the three major areas, was included. Given the lessons that can be learned from the past, presentations were also scheduled on the litigation that was done during the last three decades of the twentieth century. Supreme Court Justice Ruth Bader Ginsburg graciously agreed to speak about her pioneering litigation before that Court during her days as an advocate. The proceedings of the conference are printed in the pages that follow. A number of themes run through much of the discussion. One is the con- tinuing necessity for scholars and activists to work across fields. Conference participants referred frequently during and after the sessions, for example, to the importance of having people who work in the area of welfare listen to people whose expertise lies in the domestic violence field, and vice versa, and of having specialists in both those areas
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