Table Of ContentOUR LIVES BEFORE THE LAW
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OUR LIVES BEFORE
THE LAW
CON ST RUCT I NG A F EM I N I S T
J U R I S P R UD ENC E
Judith A. Baer
P R I N C E T O N U N I V E R S I T Y P R E S S
P R I N C E T O N, N EW J E R S E Y
COPYRIGHT 1999 BY PRINCETON UNIVERSITY PRESS
PUBLISHED BY PRINCETON UNIVERSITY PRESS, 41 WILLIAM STREET,
PRINCETON, NEW JERSEY 08540
IN THE UNITED KINGDOM: PRINCETON UNIVERSITY PRESS,
CHICHESTER, WEST SUSSEX
ALL RIGHTS RESERVED
LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA
BAER, JUDITH A.
OUR LIVES BEFORE THE LAW : CONSTRUCTING A FEMINIST
JURISPRUDENCE / JUDITH A. BAER.
P. CM.
INCLUDES BIBLIOGRAPHICAL REFERENCES AND INDEX.
ISBN 0-691-03316-1 (CLOTH : ALK. PAPER)
ISBN 0-691-01945-2 (PBK. : ALK. PAPER)
1. FEMINIST JURISPRUDENCE. 2. WOMEN—LEGAL STATUS,
LAWS, ETC.—UNITED STATES. I. TITLE.
K349.B34 1999
340′.082—dc21 98-55309
THIS BOOK HAS BEEN COMPOSED IN JANSON
CHAPTER 5 OF THE PRESENTWORK APPEARED AS PART OF THE
AUTHOR’S ESSAY, “WOMEN’S RIGHTS AND THE LIMITS OF
CONSTITUTIONAL DOCTRINE,” 44 WESTERN POLITICAL
QUARTERLY (1991): 828–852.
THE PAPER USED IN THIS PUBLICATION MEETS THE
MINIMUM REQUIREMENTS OF ANSI/NISO Z39.48-1992 (R1997)
(PERMANENCE OF PAPER)
http: //pup.princeton.edu
PRINTED IN THE UNITED STATES OF AMERICA
1 3 5 7 9 10 8 6 4 2
I N M EMOR I AM
THE WOMAN IN THE HOUSTON MORGUE
JANUARY 2 0 , 1 9 9 3
SHE WAS IN HER TWENTIES ,
LEFT A SMALL CHILD ,
AND WAS A V ICT IM OF
DOMEST IC V IOLENCE .
OUR POL IT ICS MUST HAVE AS
ONE OF ITS GOALS
AN END TO THI S K IND
OF K ILL ING .
Jane Rule
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CONTENTS
PREFACE ix
ACKNOWLEDGMENTS xv
PART I: LAW THROUGHWOMEN’S LIVES 1
ONE
Introduction 3
TWO
Is Law Male? The Foundations of Feminist Jurisprudence 16
THREE
What Makes Law Male? Gendered Jurisprudence and Feminist Critique 39
FOUR
How Is Law Male? Gendered Method and Feminist Response 71
PART II: WOMEN’S LIVES THROUGH LAW 95
FIVE
Reconstructing Equality: Feminist Constitutional Doctrine 97
SIX
Reconstructing Rights: Feminist Reproductive Freedom 124
SEVEN
Reconstructing Responsibility: Feminist Fetal Protection 151
EIGHT
Toward a Feminist Postliberalism 176
NOTES 203
BIBLIOGRAPHY 247
GENERAL INDEX 265
INDEX OF CASES 273
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PREFACE
HIS BOOK was born out of anger and hope. The anger comes
frommy observations of the lives women live and from the failure
Tof contemporary feminist scholarship to deal with the conditions
women endure. The hope comes from my belief that theory can explain
situations and practice can improve them. These beliefs persist in the face
of considerable evidence to the contrary. But acting on them has worked for
me often enough to inspire these efforts to reground and redirect feminist
jurisprudence.
This is a contrarian book. I reject much of the conventional wisdom
about feminism and American society. I believe that the worst mistake fem-
inists have made is to be too nice. The effort to be nice has corrupted and
weakened both feminist theory and feminist practice. Far from bashing
men, we have labored to avoid offending them. We have too often pulled
our punches when discussing male aggression, male irresponsibility, male
indolence, and male privilege. We have wasted time and energy criticizing
feminists who refuse to moderate their message. Far from trashing full-
time homemakers, pink-collar workers, or any women who lead lives dif-
ferent from those we want for ourselves, we have been so eager to praise
women for the work they do that we have let it stay women’s work. This
kind of accommodation may or may not be good politics, but it is never
good scholarship. The desire to please must not master the pursuit of truth.
Feminist failures of nerve arise partly from the fact that feminists tend
to come from at least one of two groups of people who are trained in
kindness, tolerance, acceptance, and guilt. These groups are women and
liberals. (And I venture a guess that male feminists are even more likely
than women to be present or former liberals.) As critical as feminists are of
both gender stereotypes and liberalism, we too often act like lady liberals.
Femininity and liberalism share certain habitual attitudes. Guilt is one;
another is what might be called asymmetrical solicitude.
Liberals learn to respect other people’s points of view, but not to expect
these others to reciprocate. Feminists often behave the same way. They
extend to their opponents the rights to act and the immunities from inter-
ference which are central tenets of liberalism, but they hesitate to claim
these benefits for themselves. For example, supporters of the proposed
Equal Rights Amendment and of reproductive freedom have gotten fre-
quent reminders that many women disagree with them, that they do not
speak for all women. Anti-ERA and antichoice women do not hear similar
admonitions, although the same applies to them. Habits of courtesy, defer
