Feminist Law Professors

Time for an observation here. This fits with my ongoing discussion on the parenthood of the man from the one-night-stand. (It’s a rather long thread and I’ve linked to an early part of it. I’m not going to repeat the main points here.)

Being recognized as a parent gives you power. I don’t just mean the obvious power over a child, though it does that of course. Or even just the power to exclude others from a child’s life.

A parent can insist on being involved in a child’s life and in the decisions regarding the child. That means that a parent has the power to constrain, or at least to challenge, the actions of another parent. A parent can claim that it is her or his right to be engaged in this way. That claim of right is one that carries great weight in our culture. We readily recognize (indeed, we naturalize) the rights of parents. When someone says “I’m a parent and I have the right….” it counts for something.

Though I’ve stated it somewhat dramatically, I don’t mean to raise any general objection to the idea of parental rights or to the idea that one parent can constrain the liberty of another. Each parent has similar authority.

But that’s after we’ve decided the person is a parent. Deciding that a particular person is a grant of this power. What I’m concerned with is how we decide which people are parents, which people have access to these claims of authority.

I’m thinking about this now because when we make the one-night-stand guy a father, we give him the power I’ve described above. Not absolute power. But enough power to interfere with the mother’s choices. If, for example, the mother wants to move with the child to another city, he can take her to court and challenge her right to relocate with the child. (And that same claim of right could support a man’s argument that he be consulted before the woman elects to have an abortion.)

Remember, too, that for now I am confining myself to instances where there is no pre-existing relationship between the man and the woman. Thus, we contemplate leaving the woman not only unexpectedly pregnant but also potentially subject to the demands of a stranger.

I do not mean to suggest that concerns about power alone justify declaring that the man is not a father. But I think the “is he a parent question” is one worth asking, one that warrants careful consideration. All these recent posts have attempted to examine that question from differing angles. Particularly if one is trying to work from a feminist perspective, the power dynamic is worthy of note.

-Julie Shapiro (cross posted to Related Topics)

(To those of you reading this on Feminist Law Profs, I’m cross-posting there from my own blog. The links and internal references are to that blog. Also, I’m about to be traveling for a bit so after tomorrow’s post I may not be able to get in to cross-post for a week or so.   But I’ll be back.)
So far I’ve been considering what I’ll call the one-night-stand problem entirely from the point of view of the man. Today I want to switch focus and begin thinking about this from the woman’s point of view.

I’ll start with the obvious. Men and women are not similarly situated with regard to pregnancy. While both men and women contribute genetic material to create a fertilized egg, only the woman actually becomes pregnant. Thus, if a woman becomes pregnant after a one-night-stand, the man can (physically) simply walk away from the pregnancy.   The woman cannot.

As the law currently stands, however, the man will be the father of any child that is born as the result of that pregnancy. I’ve suggested we re-examine that assumption, stating instead that the man is not the father. This might seem to leave the woman more likely to be on her own and thus in a far worse position. Given that I am a feminist, that would be quite problematic. A more detailed examination of my suggestion from the woman’s perspective might help to ease this concern.

Initially, the woman must decide whether or not to continue the pregnancy. This must be her decision. In some instances she will choose to terminate her pregnancy. In others she may choose to carry the child to term. I will consider these two categories of cases separately.

If she decides to terminate the pregnancy (and I’m going to indulge in the academic assumption that she has meaningful access to safe and legal means to do this) she should be able to do so without interference. If anything, removing the designation of “father” from the man makes this more straightforward. His strongest argument for a voice in or a veto over her decision is that as a father he has a right to input into the fate of “his” child. So in those instances where the woman does choose to terminate her pregnancy the refusal to label him a father is not disadvantageous to her.

What about those instances where the woman chooses to carry the pregnancy to term? Is she better off with the man as father or not? Keep in mind that for the moment I am thinking only about one-night-stand cases–that is, instances where pregnancy results from an isolated encounter with a man with whom she has no pre-existing relationship.

Once again, I want to divide the cases into two categories–those in which the man wishes further involvement and those in which he does not.

In the event that the man would like to be involved and the woman would also like him to be involved, nothing in my proposal stands in their way. He may not begin with a claim to be the father, but that doesn’t preclude his involvement.

In the event he would like to be involved but she would prefer he not be, she has the ability to close the door on him. He cannot gain entry by asserting he is the father of the child. This would seem to support her autonomy and hence, is consistent with my feminist principles.

Suppose he does not want to be involved? Again, the easy case is where their interests are aligned. If he does not want to be further involved and she does not want him to be further involved, then it would seem unproblematic, at least from a feminist perspective, to say he should not be involved. Current law does demand a different result–legally he is the father of the child. But it’s not clear to me that it serves the woman’s interest to insist on that in these particular circumstances. Neither am I sure that the command of the law changes the actual outcome in the real world.

The last permutation is that he does not wish further involvement and she wishes him to be involved. Current law might appear to support her–it recognizes him as the father of the child. But I’m very doubtful this actually makes him a ready partner in the enterprise of raising a child. I suppose more generally, I am skeptical that the law can make someone effectively enact the role of parent simply by labeling that person as such.

This consideration makes leads me to conclude, at least tentatively, that it isn’t necessarily bad for the woman involved in the one-night-stand if the man is not considered the father of any child that results. That’s only one small piece of the puzzle, but at least it is a start.

by Julie Shapiro (cross-posted to Related Topics)

From here:

A federal appeals court has struck down a seldom-enforced Texas law making it a crime to promote or sell sex toys.

The 5th U.S. Circuit Court of Appeals, ruling in a case originally filed in federal court in Austin, found that the ban in the Texas penal code on selling or promoting obscene devices violates the right to privacy under the 14th Amendment of the U.S. Constitution.

“Whatever one might think or believe about the use of these devices, government interference with their personal and private use violates the Constitution,” said the opinion in the case considered by a three-judge panel of the New Orleans-based court.

The opinion relied heavily on the U.S. Supreme Court’s 2003 decision in Lawrence and Garner v. Texas, which struck down a Texas law prohibiting private consensual sex among members of the same sex. That case established a broad constitutional right to sexual privacy.

The sex toys lawsuit arose in 2004 when Reliable Consultants Inc., which operates four retail stores in Texas under the names Dreamer’s and Le Rouge Boutique, sued Travis County District Attorney Ronnie Earle challenging his right to prosecute under the law, a state jail felony punishable by up to two years in jail. PHE Inc., doing business as Adam and Eve, Inc., intervened on behalf of the plaintiffs and the State of Texas, represented by Attorney General Greg Abbott, entered the suit as a defendant.

U.S. District Judge Lee Yeakel dismissed the suit after finding that there is no constitutionally protected right to publicly promote obscene devices. The plaintiffs then appealed.

The Texas statute criminalizes the selling, advertising, giving or lending of a device designed or marked for sexual stimulation, according to the opinion. In addition to Texas, three other states have a similar obscene-devices statute :Mississippi, Alabama and Virginia. Obscene-devices statutes in Louisiana, Kansas, Colorado and Georgia have been struck down by courts.

The case is Reliable Consultants v. Earle and the opinion is available here.

–Ann Bartow