Dec. 09, 2022 –– What do the Second Amendment, school prayer, and abortion rights have in common? According to Melissa Murray, a leading scholar in family law, constitutional law, and reproductive rights and justice, read together, they point to the Supreme Court’s embrace of a jurisprudence of a masculinity.
Presenting at the 27th Annual Frankel Lecture sponsored by the Houston Law Review, Murray, who is the Frederick I. and Grace Stokes Professor of Law at NYU School of Law outlined what she referred to as the U.S. Supreme Court’s jurisprudence of masculinity. As she explained, three of the Court’s recent rulings — New York State Rifle & Pistol Association v. Bruen, Kennedy v. Bremerton School District and Dobbs v. Jackson Women’s Health Organization — reveal the Court’s prioritization of rights that code “male” and the men who would exercise them.
A hallmark of UH Law Center’s Frankel Lecture series is the space it creates for dialogue among legal academics on difficult issues. As such, Reva Siegel, Nicholas deB. Katzenbach Professor of Law at Yale Law School, and Helen Alvaré, Associate Dean for Academic Affairs and Robert A. Levy Endowed Chair in Law and Liberty at the George Mason University Antonin Scalia Law School, each offered their insights and perspectives on Murray’s lecture.
The jurisprudence of masculinity is “a jurisprudence that prioritizes and protects rights that are coded and understood as male as well as the men who would exercise those rights,” said Murray.
“But the jurisprudence of masculinity goes beyond merely characterizing certain rights as male,” Murray maintained. “It operates by fundamentally recasting core assumptions and constitutional laws in ways that privilege and prioritize men.”
“These cases and the jurisprudence of masculinity that they reflect have utterly transformed the landscape of constitutional law,” said Murray. “Specifically, I argue that the jurisprudence of masculinity enlists the legal landscape for the protection and prioritization of men’s rights by reorganizing the public-private divide, recasting the nature of men’s and women’s bodies, and recharacterizing the relationship between the state, individuals, and rights and regulation.”
Certain rights, such as contract rights, property rights, and the Second Amendment “have been relied upon for the consolidation and expansion of patriarchal power and thus have been understood and socialized as male rights,” Murray said.
In Bruen, a ruling that struck down a New York law limiting carrying guns outside the home, Murray notes “the right to bear arms is discussed in tones that evince its association with men, patriarchy, and masculinity.”
Murray adds that Bruen “expands the boundary of what we know as the home and castle, the private sphere, into public spaces by insisting that the rights bearer is entitled to keep and bear arms in the public sphere and that public regulation of these spaces and the right to bear arms in them is presumptively unwelcome.”
For Siegel, elements of the jurisprudence of masculinity were evident in USA v. Perez-Gallan, a recent ruling in which Judge David Counts of the U.S. District Court for the Western District of Texas relied on the Court’s decision in Bruen, to conclude that banning those under a protective order from possessing a gun infringes on their Second Amendment rights. According to the district court, at the Founding, there were no analogous prohibitions on firearm possession.
“By applying Bruen’s history and tradition method, Judge Counts ruled in November that a law prohibiting a person under court order for partner violence for possessing a gun was unconstitutional,” Siegel said. “Take that in.”
Critics maintain that the ruling would allow those under domestic violence-related restraining orders to keep and bear arms.
The history and tradition method and originalism are instruments that “gender the court’s jurisprudence,” Murray said. “We can see the dynamic at work in the Perez-Gallan case.”
“Under the logic of the jurisprudence of masculinity, the public-private dichotomy has been reconfigured such that men, and more particularly men’s bodies, are deemed improper subjects of state regulation and thus are rendered coextensive with the private sphere,” Murray said.
For example, in Kennedy v. Bremerton School District, the Supreme Court’s ruling rested on the view that Coach Joe Kennedy’s prayers were “fundamentally private conduct because they occur at a time when Kennedy was permitted to engage in activities unrelated to his performance of his role as a public school football coach,” Murray said. “The court’s understanding of Kennedy’s conduct as private renders the publicly-owned school football field where the prayers occurred part of the private sphere insulated from state regulation for as long as Kennedy is at prayer.”
And as for religious freedom coding male, Alvaré said pointing to only the Kennedy case “neglects the women in dozens of other Supreme Court cases trying to vindicate their free exercise, and particularly the woman whose case set the standard for the strong judicial protection of First Amendment free exercise, Sherbert v. Verner.”
Murray countered by acknowledging the history of women pressing First Amendment claims, but insisted that this factual record does not diminish the view that the Court is unduly solicitous of rights that code male and have the effect of consolidating and entrenching patriarchal power and structures.
The Court’s prioritization of a jurisprudence of masculinity, Murray argues, contrasts sharply with its decision to consign women’s rights to the demos and majoritarian politics.
Alvaré, however, argued that putting the divisive question of abortion to the people makes sense. “America is not a pro-life country. It’s also not a pro-choice country.” With this in mind, “[t]he Dobbs majority was correct that the Constitution does not contain a right to legal abortion. It is not there. States can do it; the Constitution cannot do it for them,” she said.
Still, Alvaré said she agrees “that we should be very attentive to the possibility of sexism in originalist inquiries into the Constitution, including among the arguments in favor of pro-life laws.” However, she maintains that “sexist originalism does not at all characterize the Dobbs holding.”
Siegel agreed that these questions were fraught and hotly debated, but argued that it was important to continue discussing these issues, as the Frankel Lecture does, regardless of differing views. “I really do believe that the first, most urgent question for us as a nation is to find ways of talking to one another, whether it’s in this room, in politics, or over your Thanksgiving dinner with your family,” said Siegel.
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