Article: "The Rule of Love": Wife Beating as Prerogative
and Privacy

Reva B. Siegel FOOTNOTES:
n1. See infra Section I.A.

n2. See infra Section I.B. For some accounts of law reform in England during the late nineteenth century, see A. James Hammerton, Cruelty and Companionship: Conflict in Nineteenth-Century Married Life 52-67 (1992); Carol Bauer & Lawrence Ritt, "A Husband is a Beating Animal": Frances Power Cobbe Confronts the Wife-Abuse Problem in Victorian England, 6 Int'l J. Women's Stud. 99 (1983); Carol Bauer & Lawrence Ritt, Wife-Abuse, Late-Victorian English Feminists, and the Legacy of Frances Power Cobbe, 6 Int'l J. Women's Stud. 195 (1983).

n3. See infra Part III.

n4. See, e.g., Elizabeth M. Schneider, The Violence of Privacy, 23 Conn. L. Rev. 973 (1991).

n5. Joan Zorza, The Criminal Law of Misdemeanor Domestic Violence, 1970-1990, 83 J. Crim. L. & Criminology 46, 46 (1992) (quoting Nikki R. Van Hightower & Susan A. McManus, Limits of State Constitutional Guarantees: Lessons from Efforts to Implement Domestic Violence Policies, 49 Pub. Admin. Rev. 269, 269 (1989)).

n6. Zorza, supra note 5, at 46. For a more extended account of recent domestic violence statistics, see infra text accompanying notes 199-211.

n7. See infra Section IV.A.

n8. See infra Subsection I.B.2 and Section III.A.

n9. See infra Sections III.A-B.

n10. See infra Sections IV.A-B.

n11. 42 U.S.C.A. 13981 (West 1995).

n12. See infra Section IV.C.

n13. Gilbert Abbott <grav A> Beckett, The Comic Blackstone 121-22 (Chicago, Callaghan & Cockroft 1869) (1846).

n14. 46 Ala. 143, 146-47 (1871) (emphasis added).

n15. See Frances Power Cobbe, Wife-Torture in England, 32 Contemp. Rev. 55, 56-57 (1878) ("[Wife-beating] seems to be surrounded by a certain halo of jocosity which inclines people to smile whenever they hear of a case of it (terminating anywhere short of actual murder), and causes the mention of the subject to conduce rather than otherwise to the hilarity of a dinner party. The occult fun thus connected with wife-beating forms by no means indeed the least curious part of the subject.").

n16. 1 William Blackstone, Commentaries *442 ("By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything...." (citations omitted)). For a more skeptical account of marital unity doctrine, see Tapping Reeve, The Law of Baron and Femme; of Parent and Child; of Guardian and Ward; of Master and Servant; and of the Powers of Courts of Chancery 129-30 (New Haven, Oliver Steele 1816).

n17. See 1 William Blackstone, Commentaries *430-33 (citations omitted); 2 James Kent, Commentaries on American Law 109 (New York, O. Halstead 1827) ("The general rule is, that the husband becomes entitled, upon the marriage, to all the goods and chattels of the wife, and to the rents and profits of her lands, and he becomes liable to pay her debts, and perform her contracts."). See generally Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York 51-54 (1982) (summarizing analysis of Blackstone's Commentaries); Marylynn Salmon, Women and the Law of Property in Early America 15-18, 41-44 (1986) (discussing doctrine of marital unity as it applied to conveyances and contracts).

n18. 1 William Blackstone, Commentaries *444 (citations omitted). Blackstone quoted the Latin pleading of the writ of supplicavit. See Henry Ansgar Kelly, Rule of Thumb and the Folklaw of the Husband's Stick, 44 J. Legal Educ. 341, 353 (1994).

n19. Kelly, supra note 18, at 351 (citation omitted) (discussing Fitzherbert's account of writ of supplicavit). Kelly notes:

Here it is stated that "if the husband threaten his wife to beat or to kill her, she shall have this writ," which begins, "Supplicavit nobis A, uxor B, quod cum ipsa de vita sua et mutilatione membrorum suorum per praedictum B graviter et manifeste comminata existat" (A, the wife of B, supplicated us that, since she is under grave and manifest threat of her life and the mutilation of her limbs because of the aforesaid B), and so on. Under terms of the writ, the husband is to be summoned and required to guarantee "quod ipse praefatam A bene et honeste tractabit et gubernabit; et dampnum et malum aliquod eidem de corpore suo, aliter quam ad virum suum ex causa regiminis et castigationis uxoris suae licite et rationabiliter pertinent, non faciet, nec fieri procurabit" (that he will not do, or cause to be done, any harm or evil to her body, other than licitly and reasonably pertains to a husband for ruling and chastising his wife).

Id. at 353; see also Lawrence Stone, Road to Divorce: England, 1530-1987, at 201 (1990) (discussing writ of supplicavit as one form of recourse available to battered wives in seventeenth century).

n20. 1 William Blackstone, Commentaries *445 (citations omitted).

n21. See Basch, supra note 17, at 43-54 (discussing Blackstone's significance in American marital status law); see also Daniel J. Boorstin, The Mysterious Science of the Law: An Essay on Blackstone's Commentaries 3-8 (1941); Lawrence M. Friedman, A History of American Law 112 (2d ed. 1985) ("Ordinary lawyers referred to Blackstone constantly; they used his book as a shortcut to the law...."); cf. Dennis R. Nolan, Sir William Blackstone and the New American Republic, 51 N.Y.U. L. Rev. 731, 732 (1976) (analyzing Blackstone's "oblique" and "diffuse" influence in America).

n22. See 2 Kent, supra note 17, at 180 ("As the husband is the guardian of the wife, and bound to protect and maintain her, the law has given him a reasonable superiority and control over her person, and he may even put gentle restraints upon her liberty, if her conduct be such as to require it."); Francis Wharton, A Treatise on the Criminal Law of the United States 314-15 (Philadelphia, James Kay, Jr. & Brother 1846) (observing that "by the ancient common law, the husband possessed the power of chastising his wife, though the tendency of criminal courts in the present day is to regard the marital relation as no defence to a battery," and discussing Mississippi case allowing exercise of prerogative). See generally 1 Joel Prentiss Bishop, Commentaries on the Criminal Law 520-26 (Boston, Little, Brown & Co. 1872) (discussing chastisement prerogative in various status relations of household: parent and child, guardian and ward, teacher and pupil, master and servant, and husband and wife).

n23. Reeve, supra note 16, at 65.

n24. For a social history of wife beating gleaned from a variety of cultural sources, see Jerome Nadelhaft, Wife Torture: A Known Phenomenon in Nineteenth-Century America, 10 J. Am. Culture 39, 42 (1987):

Throughout the nineteenth century wife abuse appeared in poems, songs, and jokes, in temperance stories and novels which blanketed the country, in almanacs, in children's books, in illustrations, and even in at least one card game. Wife abuse was a constant topic in woman's rights conventions and in the literature of the movement....

n25. For American cases recognizing the right of chastisement during the nineteenth century, see Bradley v. State, 1 Miss. (1 Walker) 156, 158 (1824) (permitting husband "to exercise the right of moderate chastisement, in cases of great emergency, and use salutary restraints in every case of misbehaviour, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned"); State v. Black, 60 N.C. (Win.) 262, 262 (1864) (permitting husband "to use towards his wife such a degree of force as is necessary to control an unruly temper and make her behave herself; and unless some permanent injury be inflicted to gratify his own bad passions, the law will not invade the domestic forum or go behind the curtain"). Cf. Robbins v. State, 20 Ala. 36, 39 (1852) (wife's provocation can be shown in mitigation of husband's fine for assault; "if the husband was at the time... provoked to this unmanly act by the bad behaviour and misconduct of his wife, he should not be visited with the same punishment as if he had without provocation wantonly and brutally injured one whom it was his duty to nourish and protect"); State v. Buckley, 2 Del. (2 Harr.) 552, 552 (1838) (husband indicted for striking his pregnant wife, over his objection that he had right to chastise her; "We know of no law that will authorize a husband to strike his pregnant wife a blow with his fist, such as has been inflicted on this woman.... Any undue or excessive battery by a husband of his wife either in degree, or with improper means, [is] indictable." (emphasis added)); People v. Winters, 2 Parker's Crim. Cas. 10 (N.Y. 1823) (declaring that while husband has no right to inflict corporal punishment on his wife, he may defend himself against her; holding that husband who struck his wife on head and bruised her severely when she attempted to prevent him from striking one of their children was not guilty of assault and battery because jury found prisoner "had done nothing more than was necessary to defend himself in this case"); State v. Hussey, 44 N.C. (Busb.) 123 (1852) (ruling wife's testimony against her husband incompetent in all cases of assault and battery, except where permanent injury or great bodily harm is either threatened or inflicted); Richards v. Richards, 1 Grant's Cas. 389, 392-93 (Pa. 1856) (denying petition for divorce; suggesting that "it is a sickly sensibility which holds that a man may not lay hands on his wife, even rudely if necessary, to prevent the commission of some unlawful or criminal purpose" and further that "some allowance should be made for the frailties of human nature" that "betray[ ]" a man "into the commission of an act, or a harsh expression, for which, in a moment after, he might be repentant and sorrowful").

Early American cases discussing the writ of supplicavit, whose ancient language recognizes and circumscribes a husband's right to chastise his wife, see supra text accompanying note 19, include: Helms v. Franciscus, 2 Bland 544, 562 n.l (Md. Ch. 1840) (quoting Bread's Case, decided in 1681, in which court granted petition for writ of supplicavit; where wife was threatened with death and mutilation by her husband, court ordered husband to give security under penalty to treat his wife well, and enjoined him from doing "any damage or evil to the said Jane of her body, otherwise than what to a husband, by cause of government and chastisement of his own wife, lawfully and reasonably belongeth"); Adams v. Adams, 100 Mass. 365, 369-70 (1868) (declining to issue writ as substitute for divorce for petitioner who sought alimony but was religiously precluded from obtaining divorce); Codd v. Codd, 2 Johns. Ch. 141 (N.Y. Ch. 1816) (holding that writ is unavailable where injuries occurred eight years before petition); Prather v. Prather, 4 S.C. Eq. (4 Des.) 33 (1809) (granting petition for writ).

n26. See Myra C. Glenn, Campaigns Against Corporal Punishment: Prisoners, Sailors, Women, and Children in Antebellum America (1984).

n27. See, e.g., id. at 12-13, 85-147.

n28. See, e.g., Richard H. Brodhead, Cultures of Letters: Scenes of Reading and Writing in Nineteenth-Century America 13-15 (1993); cf. Karen Sanchez-Eppler, Touching Liberty: Abolition, Feminism, and the Politics of the Body (1993) (analyzing antislavery discourse).

n29. See Brodhead, supra note 28, at 18-27.

n30. Id. at 18-19. The brilliant analysis of "disciplinary intimacy" that Brodhead offers in Cultures of Letters has also been published separately. See Richard H. Brodhead, Sparing the Rod: Discipline and Fiction in Antebellum America, 21 Representations 67 (1988). For a similar account of this shift in social conceptions of discipline, see G.M. Goshgarian, To Kiss the Chastening Rod: Domestic Fiction and Sexual Ideology in the American Renaissance 39-40 (1992).

n31. See, e.g., Nancy F. Cott, The Bonds of Womanhood: "Woman's Sphere" in New England, 1780-1835 (1977); Mary P. Ryan, The Empire of the Mother: American Writing About Domesticity 1830-1860 (1982); Barbara Welter, Dimity Convictions: The American Woman in the Nineteenth Century (1976).

n32. For a discussion of the shifting understandings of the marriage relationship that contributed to reform of marital chastisement doctrine, see especially infra Part II.

The relationship between changing social mores and law reform is obviously a complex one, explored in Part IV of this Article. For now, it suffices to observe that, during the nineteenth century, reformers sought to persuade parents and teachers to abandon corporal punishment of children and organized the first societies for the prevention of cruelty to children, but did not seek reform of the parent's legal prerogative to chastise a child. By contrast, discussion of wife beating during the antebellum era was relatively circumspect, see infra note 33, yet resulted in repudiation of the marital chastisement prerogative.

n33. See Glenn, supra note 26, at 80-82. Myra Glenn's history of corporal punishment observes that "in comparison with reform efforts on behalf of chastised seamen, convicts, slaves, and children, there was relatively little public criticism of wife beating during the antebellum period. Idealized views of marriage and women imposed a crucial ideological barrier to widespread public discussion of wife beating." Id. at 80. Even after the repudiation of marital chastisement, public discussion of wife beating remained muted. For example, by the 1880s most urban areas had begun to organize societies for prevention of cruelty to children; yet only one city had a society for prevention of cruelty to wives. See Elizabeth Pleck, Domestic Tyranny: The Making of American Social Policy Against Family Violence from Colonial Times to the Present 88 (1987) [hereinafter Pleck, Domestic Tyranny]. As Linda Gordon has shown, societies for prevention of cruelty to children served as clearinghouses for problems of marital violence as well. See Linda Gordon, Heroes of their Own Lives: The Politics and History of Family Violence 252-64, 280-85, 288, 298 (1988) [hereinafter Gordon, Heroes].

n34. See Barbara L. Epstein, The Politics of Domesticity: Women, Evangelism, and Temperance in Nineteenth-Century America 109-10 (1981); Pleck, Domestic Tyranny, supra note 33, at 98-101. See generally Ruth Bordin, Woman and Temperance: The Quest for Power and Liberty, 1873-1900 (1981) (recounting history of Woman's Christian Temperance Union).

n35. See Nadelhaft, supra note 24, at 42-44.

n36. For a general discussion of the nineteenth-century woman's rights movement, see Steven M. Buechler, The Transformation of the Woman Suffrage Movement: The Case of Illinois, 1850-1920 (1986); Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women's Movement in America, 1848-69 (1978); Eleanor Flexner, Century of Struggle: The Woman's Rights Movement in the United States (rev. ed. 1975); Aileen S. Kraditor, The Ideas of the Woman Suffrage Movement, 1890-1920 (W.W. Norton & Co. 1981) (1965).

n37. Report of the Woman's Rights Convention, Held at Seneca Falls, N.Y., July 19th & 20th, 1848, at 6 (Rochester, John Dick 1848) [hereinafter Seneca Falls Convention Report] (emphasis added).

n38. For an illustration of the slow progress of common law reform, see Reva B. Siegel, The Modernization of Marital Status Law: Adjudicating Wives' Rights to Earnings, 1860-1930, 82 Geo. L.J. 2127, 2149-57 (1994) [hereinafter Siegel, Modernization] (describing interaction of legislature and courts in New York state in late nineteenth century); see also Reva B. Siegel, Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L.J. 1073, 1167-77 (1994) [hereinafter Siegel, Home As Work] (describing legislative responses to feminist demands for suffrage, inheritance reforms, and rights to earnings during 1870s).

n39. See Seneca Falls Convention Report, supra note 37, at 5-7.

n40. See Pleck, Domestic Tyranny, supra note 33, at 57-62. For examples of how the divorce question was addressed in early feminist debates, see Proceedings of the Tenth National Woman's Rights Convention, Held at the Cooper Institute, New York City, May 10th and 11th, 1860, at 88-90, 95-97 (Boston, Yerrinton & Garrison 1860). See also 1 History of Woman Suffrage 723-37 (Ayar Co. 1985) (Elizabeth C. Stanton et al. eds., New York, Fowler & Wells 1881). For an example of how marital violence figured in Elizabeth Stanton's arguments for divorce, see infra text accompanying note 117.

n41. See DuBois, supra note 36, at 46-47; Kraditor, supra note 36, at 112, 121.

n42. Crimes Against Women, Woman's J., Dec. 25, 1875, at 413, 413 (column signed C.C.H. of East Orange, New Jersey).

n43. Crimes of a Single Day, Woman's J., Jan. 29, 1876, at 34, 34 (column signed H.B.B.).

n44. See, e.g., Fulgham v. State, 46 Ala. 143, 147 (1871); Richardson v. Lawhon, 4 Ky. L. Rptr. 998, 999 (1883) (abstract) (action for unlawful arrest) ("The husband has no right to inflict personal chastisement upon his wife. She is entitled to the same protection from violence at the hands of her husband that a stranger is entitled to."); Commonwealth v. McAfee, 108 Mass. 458, 461 (1871) (husband indicted for manslaughter after beating his wife and causing her death) ("Beating or striking a wife violently with the open hand is not one of the rights conferred on a husband by the marriage, even if the wife be drunk or insolent."); Harris v. State, 14 So. 266 (Miss. 1894) ("The blind adherence shown in [a prior Mississippi chastisement case] to revolting precedent has long been utterly repudiated."); Gorman v. State, 42 Tex. 221, 223 (1875).

n45. Elizabeth Pleck, The Whipping Post for Wife Beaters, 1876-1906, in Essays on the Family and Historical Change 127 (David Levine et al. eds., 1983) [hereinafter Pleck, The Whipping Post]; see infra text accompanying note 75.

n46. In selecting these cases for discussion, I suggest some regional factors that may have shaped the repudiation of chastisement (e.g., woman's rights activism, disestablishment of slavery) without drawing definitive conclusions about the role regional factors played in the regulation of marital violence. At present, the sources available are too scant to support this kind of analysis. Treatise discussions of the period refer to a relatively small body of appellate opinions, see supra notes 25, 44, and records of local law enforcement authorities are also sparse, see infra note 50 (discussing archival problems).

n47. 108 Mass. 458 (1871).

n48. Id. at 459.

n49. Id. at 461.

n50. For common law restrictions on the right of "moderate correction," see supra text accompanying notes 18-20 (discussing writ of supplicavit as restraint on chastisement). See also Kelly, supra note 18, at 353 (discussing old English law governing manslaughter charges in circumstances in which ""a man corrects his wife, his servant, or child, or his pupil reasonably, without intending to kill her or him, and he or she dies of it'"). For a discussion of customary restraints on marital chastisement, see Russell P. Dobash & R. Emerson Dobash, Community Response to Violence Against Wives: Charivari, Abstract Justice and Patriarchy, 28 Soc. Probs. 563 (1981).

For criminal cases decided after the repudiation of chastisement that involve severe cases of spousal assault, see, e.g., Carpenter v. Commonwealth, 92 Ky. 452, 453 (1892) (husband convicted of maliciously and unlawfully cutting his wife's throat, with intent to take her life); State v. Mabrey, 64 N.C. 592, 593 (1870) (husband guilty of assault where he wielded knife and threatened to kill his wife, until deterred by bystander; "the courts will not invade the domestic forum, to take cognizance of trifling cases of violence in family government; but there is no relation which can shield a party who is guilty of malicious outrage or dangerous violence committed or threatened.").

Because published opinions in such cases are scarce and much primary research remains to be done on the operations of the police courts that handled cases of marital violence among the poor, it is difficult to gauge the types of injury that elicited regular police response. See Elizabeth Pleck, Criminal Approaches to Family Violence, 1640-1980, in 11 Family Violence 19, 30 (Michael Tonry & Norval Morris eds., 1989) [hereinafter Pleck, Criminal Approaches]. Elizabeth Pleck observes that "the operation of police courts up to the 1870's has not been studied, largely because of the lack of available documents," and notes only one study of police courts from 1870 to 1920 (examining the records of the Oakland, California police courts). Id. She concludes that "we do not know whether the conviction rate was lower in cases of family violence than it was in other crimes against the public order," id. at 31, but she surmises that it was, with lower arrest and prosecution rates, see id. For an interesting study of local enforcement activity, see Pamela Haag, The "Ill-Use of a Wife": Patterns of Working-Class Violence in Domestic and Public New York City, 1860-1880, 25 J. Soc. Hist. 447 (1992) (examining dockets of Court of General Sessions for New York City, which heard cases that city police courts recommended for trial).

n51. See Elizabeth Pleck, Feminist Responses to "Crimes Against Women," 1868-1896, 8 Signs 451, 458-59 (1983) [hereinafter Pleck, "Crimes Against Women"].

n52. See Lucy Stone, Cruelty to Wives, Woman's J., Jan. 11, 1879, at 12, 12; Legal Relief For Assaulted Wives, Woman's J., Jan. 11, 1879, at 12, 12.

n53. Henry B. Blackwell, Legal Redress for Assaulted Wives, Woman's J., Jan. 18, 1879, at 20, 20.

n54. Id. (quoting report of House Committee on the Judiciary).

n55. An Act for the Protection of Married Women, 1879 Mass. Acts 444.

n56. Bailey v. Bailey, 97 Mass. 373, 380 (1867).

n57. Id. at 379 (quoting Shelford's treatise on marriage and divorce) (asserting that ""[a] blow between parties in the lower conditions and in the higher stations of life bears a very different aspect'" and affirming jury decision denying divorce petition of woman who alleged her husband shut her arm in a door and bit her arm, deprived his wife and children of furniture and food for close to a month, and after they reconciled again beat her); see also Ford v. Ford, 104 Mass. 198, 205-06 (1870) (upholding jury verdict that husband's violence on one occasion does not meet standard of "extreme cruelty"; excluding evidence of other assaultive conduct).

Massachusetts divorce law was not atypical in its attention to the class status of the petitioners. See Goodrich v. Goodrich, 44 Ala. 670, 682 (1870) (that husband provided his wife expensive clothing does not mitigate the fact he battered her; "to a refined and educated woman, accustomed to be caressed and admired, as ladies in her station in society usually are, what are baubles such as these in comparison to the love and sympathy of her husband?").

n58. See Glenn, supra note 26, at 68-70; Robert L. Griswold, The Evolution of the Doctrine of Mental Cruelty in Victorian American Divorce, 1790-1900, 19 J. Soc. Hist. 127, 132-35 (1986) [hereinafter Griswold, Mental Cruelty]; Robert L. Griswold, Law, Sex, Cruelty, and Divorce in Victorian America, 1840-1900, 38 Am. Q. 721, 723 (1986) [hereinafter Griswold, Divorce in Victorian America]; Robert L. Griswold, Sexual Cruelty and the Case for Divorce in Victorian America, 11 Signs 529, 529-32 (1986) [hereinafter Griswold, Sexual Cruelty].

For statistics on the divorce rate in this era, as well as the frequency with which divorce was granted on grounds of cruelty, see Glenn, supra note 26, at 65; Griswold, Divorce in Victorian America, supra, at 722:

By today's standards, the figures on divorce in the late nineteenth and early twentieth centuries are quite low, but they seemed alarmingly high to contemporaries. From 1867 to 1886, United States courts granted 328,716 divorces; in the next twenty years, the number jumped to 945,625, far outstripping the proportionate rise in population.

At the center of this increase was a giant rise in the number of cases brought on the grounds of cruelty. From 1867 to 1906, wives received 218,520 divorces because of cruelty and husbands 39,300. Next to nonsupport, cruelty cases rose more sharply than cases based on any other cause in these years. Comparing the years 1902-1906 with 1867-1871, divorces granted to wives on the ground of cruelty jumped 960 percent, and to husbands 1,610 percent. Between 1867 and 1871, 18 percent of divorces granted to wives were on the ground of cruelty; that figure for the years 1902-1906 was 29 percent. The same comparison for husbands reveals a jump from 4 percent to 12.5 percent.

n59. See, e.g., 2 Chester G. Vernier, American Family Laws 66 (1932) (quoting, by state, statutory definitions of cruelty as ground for divorce); see also State v. Rhodes, 61 N.C. (Phil. Law) 453, 455 (1868):

Our divorce laws do not compel a separation of husband and wife, unless the conduct of the husband be so cruel as to render the wife's condition intolerable.... In some cases it has been held that actual and repeated violence to the person, was not sufficient. In others that insults, indignities and neglect without any actual violence, were quite sufficient.

n60. On the defense of provocation, see, e.g., Knight v. Knight, 31 Iowa 451, 458 (1871):

"If what is complained of as cruelty is the result of the complainant's own misconduct, it will not furnish ground for the proceeding. The remedy is in her own power; she has only to change her conduct; otherwise the wife would have nothing to do but misconduct herself, provoke the ill treatment and then complain."

Id. at 458 (quoting Bishop's treatise on marriage and divorce). See generally Annotation, Conduct Amounting to Treatment Endangering Life Within Statute Defining Grounds for Divorce, 5 A.L.R. 712, 719-22 (1920) (discussing defense of provocation).

On the defense of condonation, see, e.g., Davies v. Davies, 37 N.Y. 45, 46, 48 (1869) (where husband "choked [wife]; committed severe personal violence upon her, and struck her a blow with his fist upon the left temple, severing the temporal artery, and endangering [her] life" but wife continued to cohabit with husband for about 15 months thereafter, such cohabitation "implies a forgiveness of such treatment" and "court would not grant a divorce for such ill treatment, if in the interval, the defendant had treated his wife kindly and given her no further cause of complaint."). See also Barber v. Barber, 62 U.S. 582, 593-94 (1858) (discussing doctrine of condonation as it bears on domicile of woman seeking divorce). See generally Annotation, Condonation of Cruel Treatment as Defense in Divorce Action, 14 A.L.R. 931 (1921) (discussing defense of condonation).

n61. See, e.g., Bailey v. Bailey, 97 Mass. 373, 379 (1867) (quoting Shelford's treatise on marriage and divorce: ""A blow between parties in the lower conditions and in the higher stations of life bears a very different aspect.'") (affirming jury decision denying divorce petition of woman who alleged her husband shut her arm in door and bit her arm, deprived her and their children of furniture and food for close to a month, and, after they reconciled, again beat her). See generally Griswold, Mental Cruelty, supra note 58, at 134-35 (discussing class-conscious application of mental cruelty doctrines, illustrated by quotations drawn from numerous contemporary commentators).

n62. 46 Ala. 143 (1871).

n63. Id. at 146.

n64. Id. at 146-47 (emphasis added) (citations omitted).

n65. The appellate opinion in the Fulgham case was written by Associate Justice Thomas M. Peters. Id. at 3, 145. Peters was a slaveowner before and during the war; he later became a prominent Southern Unionist and was active after the war in Alabama's constitutional convention. See Malcolm C. McMillan, Constitutional Development in Alabama, 1798-1901: A Study in Politics, the Negro, and Sectionalism 121 n.57 (1955). McMillan notes:

Peters was a lawyer, graduate of the University of Alabama, an old-line Whig in politics, supporter of Douglas in 1860, and bitter opponent of secession in 1861. Prior to the war he had been state representative and senator. Although he lost more than twenty slaves during the war and was frequently hanged in effigy by his neighbors, his house became the center for Union sentiment in his North Alabama Congressional district. He was a man of much culture, a botanist, could read French and Latin, and during the convention of 1867 was most interested in education and penal reform.


n66. Before the war, masters forbade slaves to beat their partners, and the Freedmen's Bureau continued to regulate such conduct in the aftermath of the war. See Catherine Clinton, Bloody Terrain: Freedwomen, Sexuality and Violence During Reconstruction, 76 Ga. Hist. Q. 313, 319 (1992) ("White observers condemned husbands who considered wifebeating a "right' and resisted bureau intervention. Ex-slaves reported that before emancipation masters prohibited slave men from striking their wives - and agents revealed that they assumed this paternalistic role after abolition."); see also Sara Rapport, The Freedmen's Bureau as a Legal Agent for Black Men and Women in Georgia: 1865-1868, 73 Ga. Hist. Q. 26, 39-41 (1989) (describing efforts of Freedmen's Bureau to prosecute wife beating among emancipated slaves in aftermath of Civil War).

n67. 14 So. 266 (Miss. 1894).

n68. Id. at 266. For a discussion of the Bradley case to which the opinion refers, see infra notes 129-31 and accompanying text.

n69. Cf. Martha Hodes, The Sexualization of Reconstruction Politics: White Women and Black Men in the South after the Civil War, 3 J. Hist. Sexuality 402, 403 (1993) (analyzing "white anxiety and alarm about black male sexuality" in the Reconstruction South).

n70. Klan attacks on black and white men said to have beaten their wives first came to light in 1871, when Congress embarked upon an extensive investigation of the Klan's activities in the states of the former Confederacy. Although it is difficult to discern at this distance precisely how widespread this practice ultimately became, the testimony of numerous witnesses who appeared before the Joint Select Committee suggests that wife beating often served as a justification for assaults on the freedmen and their supporters. Testifying to the circumstances surrounding the shooting death of an African-American man in rural Mississippi, one witness explained, "it was supposed that he was killed for whipping his wife." 11 U.S. Congress, Report of the Joint Select Committee to Inquire into the Condition of Affairs in the Late Insurrectionary States 361 (1872) [hereinafter KKK Report]. Similarly, an Alabama witness - when asked to characterize the nature of the "offenses" likely to provoke Klan attacks - immediately recalled the ordeal of a local man who had been "charged with whipping and maltreating his wife." As a result, he explained, "a body of men," all of whom were apparently "in disguise," "went there and took him out and gave him a whipping on his bare back, and admonished him to more proper customs in his domestic habits...." 8 id. at 611. Speaking more generally about Klan practices in the state, another witness asserted that "where a man whipped his wife these Klansmen were apt to deal with it." 9 id. at 987.

White Republicans were also vulnerable to Klan attack where domestic discord was supposed to have been present. In one of the more oblique references to spousal abuse contained in the report, a white man was allegedly subjected to assault because "he and his wife had a little falling out." 13 id. at 48. For similar cases of Klan violence, see 10 id. at 1808; 12 id. at 502; and 13 id. at 13. In addition to the public posture they assumed against wife beating, members of white-supremacist organizations such as the Ku Klux Klan leveled a number of more overtly sexual charges, notably incest, abortion, miscegenation, and cohabitation, as warrant for their attacks. Indeed, Reconstruction-era Klansmen were given to inflicting outrages on the bodies of their victims that were themselves highly sexualized - including everything from the whipping, burning, and mutilation of genitals to complete castration.

I am indebted to Lisa Cardyn for this account of Klan involvement in "prosecuting" wife beaters. See Lisa Cardyn, Sexualized Racism and Gendered Violence: Outraging the Body Politic in the Reconstruction-Era South (Apr. 9, 1996) (unpublished manuscript, on file with author); see also Hodes, supra note 69 (exploring white Southern preoccupation with black male sexuality during Reconstruction Era); Pleck, The Whipping Post, supra note 45, at 137 ("The campaign to reintroduce the whipping post also coincided with a resurgence of mob violence, of vigilantes in the West, lynch mobs in the South, and White Caps in the Middle West.").

As Bertram Wyatt-Brown has observed, there is some resemblance between the vigilante attacks undertaken by Reconstruction-era white-supremacist groups and the generally more benign activities of the European charivari. Bertram Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South 436-38, 442-47 (1982). On early-modern European mob actions against suspected wife beaters, see, e.g., E.P. Thompson, Customs in Common 492, 505, 510, 512 (1991); Dobash & Dobash, supra note 50, at 565-69.

n71. Cobbe, supra note 15.

n72. See supra text accompanying notes 51-55 (discussing Lucy Stone's campaign in Massachusetts).

n73. See Cobbe, supra note 15, at 79-82.

n74. See Pleck, Domestic Tyranny, supra note 33, at 111-21. On the deliberations of the ABA, see American Bar Ass'n, Report of the Ninth Annual Meeting of the American Bar Association 286-93 (Philadelphia, Dando 1886); American Bar Ass'n, Report of the Tenth Annual Meeting of the American Bar Association 57-59, 69 (Philadelphia, T. & J.W. Johnson & Co. 1887).

n75. Pleck, Domestic Tyranny, supra note 33, at 109 n.4 (listing jurisdictions that considered adopting whipping-post legislation); Pleck, Criminal Approaches, supra note 50, at 40.

n76. Clark Bell, Wife Beaters and Their Punishment, 8 Medico-Legal Stud. 165, 168 (1906) [hereinafter Bell, Wife Beaters] (paper read before Medico-Legal Society and Psychological Section in October, 1903, reporting remarks of Chief Justice Charles B. Lore of Delaware, at 1899 meeting).

n77. Id. at 169 (remarks of Judge Ignatius C. Grubb of the Delaware Supreme Court at 1899 meeting of Medico-Legal Society).

n78. Id. at 169-70 (remarks of Hon. John G. Shortall, president of Humanitarian Society of Chicago, at 1899 meeting of Medico-Legal Society).

n79. Rev. Phebe A. Hanaford, The Whipping Post for Wife-Beaters, 17 Medico-Legal J. 108, 109 (1899) (paper read before the Medico-Legal Society (Psychological Section) in New York, May 17, 1899) (emphasis added).

n80. Bell, Wife Beaters, supra note 76, at 172. For similar claims, see Simeon E. Baldwin, Whipping and Castration as Punishments for Crime, 8 Yale L.J. 371, 377 (1899); Clark Bell, The Whipping Post and the Wife Beater, 7 Medico-Legal Stud. 113, 113 (1902) [hereinafter Bell, Whipping Post] (attributing similar observation to Governor of Delaware, a state that still used whipping post for various crimes, including wife beating). See also supra note 70.

n81. Pleck, "Crimes Against Women," supra note 51, at 452-53. Stanton spoke out about many cases of aggravated cruelty among the Dutch aristocracy in New York, and, with Anthony, called for the conviction of attorney Albert McFarland, a wife beater who murdered his ex-wife's fiance; Stanton also aided the abused ex-wife of a Massachusetts senator. Id. at 453. By the postwar era, however, some woman's rights advocates were beginning to describe violence against women in class-based or ethnicized terms. For example, when Henry Blackwell condemned wife beating in 1875, he asserted that "these outrages are confined to no class or nationality," yet then proceeded to observe that "a large majority of them are committed by foreigners - probably because women are less esteemed and respected in foreign countries than in our own." Henry B. Blackwell, Maltreating Women, Woman's J., May 15, 1875, at 156, 156. A number of suffragists (including Lucy Stone) ultimately endorsed the whipping post as a punishment for wife beaters, although many others in the woman's movement condemned the proposal. See Pleck, The Whipping Post, supra note 45, at 132-33.

n82. For an account of domestic violence among the elite in the antebellum South, see Wyatt-Brown, supra note 70, at 282 ("In 1855 David Gavin listed four local wife-beaters in a very small radius of his plantation. Two of the husbands were physicians, all four belonged to the gentry set, and their wives all had excellent pedigrees."). The practice was visible in the North as well. See Glenn, supra note 26, at 64-65 (observing that, during 1860s, New York Times reported incidents of domestic violence among the lower classes and the "respectable"). Glenn notes, for example, that in 1866, "the Times reported that the Second United Presbyterian Church of Pittsburgh, Pennsylvania had excommunicated its minister... because he had committed adultery and had behaved in an "unkind, cruel, and violent' manner towards his family. Dr. Priestley regularly kicked, choked, and spat at his wife...." Id. See generally Nadelhaft, supra note 24 (discussing variety of cultural sources suggesting that wife beating was "known phenomenon" in nineteenth-century America).

n83. See Pleck, Criminal Approaches, supra note 50, at 36.

n84. See Elizabeth Pleck, Wife Beating in Nineteenth-Century America, 4 Victimology 60, 65 (1979) [hereinafter Pleck, Wife Beating] ("The wifebeater, according to police records, was generally an immigrant or a black. In Pennsylvania most of the men arrested for wifebeating were immigrants: Germans, Irish, English, Hungarians, and Italians." (citation omitted)); supra note 81 (quoting Henry Blackwell on ethnicity of wife beaters); see also 40 Cong. Rec. 2446-47 (1906) (remarks of Rep. Adams) (advocating bill to punish wife beaters in District of Columbia with flogging at whipping post; introducing chart identifying wife beaters prosecuted in Pennsylvania by "nationality of the condemned"; and observing: "Wife beating exists to a greater extent, though not exclusively, among the foreign population, and it is certainly desirable that the baneful influence of the practice should be promptly checked before contaminating our native-born people.").

n85. See, e.g., Pleck, The Whipping Post, supra note 45, at 135-37 (discussing racially disproportionate enforcement of wife-beating statutes, particularly in South, where black men were far more likely than whites to be prosecuted for physically abusing their wives); Pleck, Wife Beating, supra note 84, at 65 ("Between 1889 and 1894, fifty-eight out of sixty men arrested for wifebeating in Charleston, South Carolina were black." (citation omitted)). For contemporary discussions of the racial incidence of punishment, see 40 Cong. Rec. 2444, 2449 (1906) (remarks of Rep. Sims) (debating bill to punish wife beaters in District of Columbia by flogging at whipping post and discussing committee report in support of bill that indicated that "in the fourth precinct there were 14 white and 72 colored out of a total of 86 arrests for wife beating, and in the sixth precinct there were 23 white and 73 colored out of a total of 96 arrests for this offense"); Baldwin, supra note 80, at 377 (discussing criminalization of wife beating in Maryland: "In 1884 there were one hundred and thirty-one arrests upon this charge in the city of Baltimore. Early in 1885 a man, and the first white man, was sentenced under the new law to twenty lashes, besides a year in jail." (emphasis added)).

n86. Cf. Pleck, The Whipping Post, supra note 45, at 141-42. It is difficult, if not impossible, to determine the frequency of wife beating during the nineteenth century, or to ascertain its incidence by class or race. Records of local law enforcement are scant, see supra note 50, and no public or private entities monitored the problem in a systematic fashion. Even if better records existed, a problem would remain: Class- and race-based beliefs about the "degraded" character of men who beat their wives could well bias law enforcement and monitoring practices. Cf. Haag, supra note 50, at 449 (discussing distortions in nineteenth-century New York City court records, due to selective dismissals of assault cases "along racist and sexist lines").

Some sociologists and historians speculate that violence may well be more prevalent in households of the poor. In this view, married men who lack other resources to assert their authority in the family (e.g. money, prestige) may be more prone to assert authority through physical force. See, e.g., David Peterson, Physically Violent Husbands of the 1890s and Their Resources, 6 J. Fam. Violence 1 (1991). But cf. Gordon, Heroes, supra note 33, at 287 (noting that "this theory would explain why poor and low-status men, who lack other resources, may use violence more readily than rich and prestigious men" but also noting that "the fact being explained... has been challenged: as with all family violence, it is difficult to distinguish reported incidents from actual incidence").

To summarize: The nonstatistical evidence gathered in this section demonstrates that legal elites regularly invoked class- and race-based stereotypes in reasoning about domestic violence. These social biases shaped law enforcement efforts, resulting perhaps most prominently in advocacy of the whipping post for wife beaters. My observations about the social biases informing law enforcement efforts do not rest on the claim that wife beating was equally distributed throughout the population - though it may have been. Class and racial bias could have motivated and shaped law enforcement efforts, even if marital violence were more prevalent in households of the poor.

Historian David Peterson subscribes to the latter view. In a case study from the 1890s, Peterson argues that wife beating was more prevalent in households in which low-status men lacked other resources to assert their authority, see Peterson, supra, but Peterson also contends that efforts to regulate wife beating have commonly been shaped by diverse forms of social bias, see David Peterson del Mar, Violence Against Wives in the United States: History's Contribution to Feminist Theory 11 (Mar. 28, 1996) (unpublished manuscript delivered at the Annual Meeting of the Organization of American Historians, Mar. 28, 1996, on file with author) ("When men have condemned wife beating, that rhetoric has most commonly functioned not to protect wives from male brutality but rather to identify the wife beater as a highly recognizable and deviant type.").

n87. See Andrew L. Shapiro, Note, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 Yale L.J. 537, 541 (1993); see also Allen v. Ellisor, 664 F.2d 391, 404-05 (4th Cir.) (en banc) (Winter, J., dissenting in part and concurring in part) (discussing racist genesis of South Carolina statute disenfranchising wife beaters), rev'd, 454 U.S. 807 (1981).

n88. Jimmie Frank Gross, Alabama Politics and the Negro, 1874-1901, at 244 (1969) (quoting John F. Burns), quoted in Shapiro, supra note 87, at 541.

n89. See Rapport, supra note 66, at 39-41 (discussing records of Freedmen's Bureau in postwar Georgia):

By comparison, cases stemming from gender conflict between black women and men appeared infrequently in the [Freedmen's] bureau record books. There are two possible explanations for this difference. The first is that freedpeople simply did not experience a great deal of sex antagonism. An alternative explanation, consistent with the hypothesis that freedpeople selectively invoked bureau protection, is that they perceived all whites, both southern and northern, as members of the oppressing class, and preferred not to "air their dirty laundry' before them.


... On the one hand, freedwomen sought bureau intervention to gain leverage in disputes with their men; on the other hand, they could not have agreed with the agents that their troubles stemmed from some proclivity toward infidelity innate to blacks. To protect their men (and themselves) from such an assessment, they brought fewer cases of domestic disputes than they did cases of wage disputes and kidnappings.

Id.; cf. Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1257 (1991):

Women of color are often reluctant to call the police, a hesitancy likely due to a general unwillingness among people of color to subject their private lives to the scrutiny and control of a police force that is frequently hostile. There is also a more generalized community ethic against public intervention, the product of a desire to create a private world free from the diverse assaults on the public lives of racially subordinated people. The home is not simply a man's castle in the patriarchal sense, but may also function as a safe haven from the indignities of life in a racist society.

n90. Carpenter v. Commonwealth, 92 Ky. 452, 456-57 (1892) (emphasis added) (affirming conviction of husband for cutting his wife's throat with knife, with intent to take her life).

n91. See supra text accompanying notes 64, 68.

n92. See supra note 38 and accompanying text.

n93. See supra text accompanying notes 18-23.

n94. For one analysis of how feminist conceptions of equality draw on the gender norms they criticize, see Siegel, Home As Work, supra note 38, at 1110-12, 1132-34, 1205, 1213-15.

n95. See supra text accompanying notes 16-21.

n96. Reeve, supra note 16, at 65.

n97. Id. (emphasis added).

n98. James Schouler, A Treatise on the Law of the Domestic Relations 59 (Boston, Little, Brown & Co. 1870) [hereinafter Schouler, Domestic Relations] (emphasis added). This language appeared in subsequent editions of the treatise until 1882 when it was amended to read, "The rule of persuasion has superseded the rule of force." James Schouler, A Treatise on the Law of the Domestic Relations 102 (Boston, Little, Brown & Co. 3d ed. 1882) (emphasis added).

n99. Schouler, Domestic Relations, supra note 98, at 59.

n100. Cf. Siegel, Home As Work, supra note 38, at 1103-08 (examining how movement's understanding of equality transformed cultural traditions it drew upon).

n101. Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 Buff. L. Rev. 205, 283 (1979).

n102. Cf. John Demos, A Little Commonwealth: Family Life in Plymouth Colony 59-125 (1970) (describing social relationships in seventeenth-century Plymouth, Massachusetts).

n103. The rise of companionate marriage is the subject of considerable historiographical dispute, with commentators dividing over the formal characteristics of the change and its proper periodization. The English historian Lawrence Stone was among the first scholars to chart the development of this new style in marital relations. See Lawrence Stone, The Family, Sex and Marriage in England, 1500-1800, at 217-18, 239-44 (1977). Since that time, American historians of women, gender, and the family have found the concept useful in depicting a range of ideological and sociological changes occurring at various points in American history, from the Early Republic through the early decades of the twentieth century. See, e.g., Nancy F. Cott, The Grounding of Modern Feminism 156-61 (1987) (discussing 1920s); Steven Mintz & Susan Kellogg, Domestic Revolutions: A Social History of American Family Life (1988) (discussing late nineteenth and early twentieth centuries); Myra C. Glenn, Wife-Beating: The Darker Side of Victorian Domesticity, 15 Canadian Rev. Am. Stud. 17, 22-23 (1984) (discussing changing marriage patterns in post-Revolutionary period); Griswold, Mental Cruelty, supra note 58, at 139 (discussing Victorian period); Christina Simmons, Companionate Marriage and the Lesbian Threat, Frontiers, Fall 1979, at 54, 54-55, 57 (1979) (discussing 1920s); Daniel Scott Smith, Parental Power and Marriage Patterns: Analysis of Historical Trends in Hingham, Massachusetts, 35 J. Marriage & Fam. 419 (1973) (discussing late eighteenth century). Occupying the middle ground in this debate is Suzanne Lebsock, who sees companionate marriage as a phenomenon that might describe "the general direction in which marriages were moving" over several centuries, thus making the concept resistant to precise temporalization. See Suzanne Lebsock, The Free Women of Petersburg: Status and Culture in a Southern Town, 1784-1860, at 17-18 (1984).

n104. William A. Alcott, The Young Wife, or Duties of Woman in the Marriage Relation 30-31 (Boston, George W. Light 1837). In describing a woman's duty of submission, Alcott remarked that he did not intend to "imply an intellectual and moral inferiority on the part of woman" or to "preclude the idea that in morals she may even be the superior. The concession is that of physical prowess, rather than of moral influence." Id. at 27. Alcott then proceeded to develop his account of marital status, as divinely and socially ordained, in this physiological framework.

n105. See Catherine E. Beecher, A Treatise on Domestic Economy, for the Use of Young Ladies at Home, and at School 26 (Boston, Thomas H. Webb, & Co. rev. ed. 1842) (describing "the relations of husband and wife" as "involving the relative duties of subordination"); L.H. Sigourney, Letters to Young Ladies 37 (Hartford, William Watson 2d ed. 1835) (describing "duty of submission" that is "imposed both by the nature of our station and the ordinances of God").

n106. William A. Alcott, Gift Book for Young Ladies 85 (Buffalo, Derby, Orton & Mulligan 1853).

n107. Mrs. Henry Ward Beecher, The Home: How to Make and Keep It 246 (Minneapolis, Buckeye Publishing Co. 1883).

n108. Id. at 247.

n109. Id. at 248-49.

n110. See Siegel, Modernization, supra note 38, at 2133-41 (criticizing "status to contract" story as account of modernization of marital status law); cf. Mark Kelman, A Guide to Critical Legal Studies 224 (1987) (criticizing "status to contract" story as account of development of liberal social institutions, but suggesting it might have some explanatory power with respect to family).

n111. Cf. Zillah R. Eisenstein, The Radical Future of Liberal Feminism 47-49, 201-19 (1993) (describing relationship between liberal individualism and family); Susan Moller Okin, Justice, Gender, and the Family 25-40 (1989) (analyzing how various theories of justice address the family); Carole Pateman, The Sexual Contract (1988) (analyzing social contract theory in feminist light); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497 (1983) (arguing that assumptions about the market/family dichotomy have impeded reform of family relations).

n112. Kirk Jeffrey, The Family as Utopian Retreat from the City: The Nineteenth-Century Contribution, 55 Soundings 21, 28 (1972) (emphasis added) (quoting Home, Ladies' Mag., May 1830, at 218). Home was depicted as a place where man

"seeks a refuge from the vexations and embarrassments of business, an enchanting repose from exertion, a relaxation from care by the interchange of affection: where some of his finest sympathies, tastes, and moral and religious feelings are formed and nourished; - where is the treasury of pure disinterested love, such as is seldom found in the busy walks of a selfish and calculating world."

Charles Burroughs, Address on Female Education (Oct. 26, 1827) (emphasis added), quoted in Cott, supra note 31, at 64.

n113. See Stephanie Coontz, The Social Origins of Private Life: A History of American Families 1600-1900, at 210 (1988). For an elaboration of this argument, see Stephanie Coontz, The Way We Never Were 52-67 (1992). See also Olsen, supra note 111, at 1499 ("The home was said to provide a haven from the anxieties of modern life - "a shelter for those moral and spiritual values which the commercial spirit and the critical spirit were threatening to destroy.'" (quoting Walter E. Houghton, The Victorian Frame of Mind, 1830-1870, at 343 (1957) (emphasis omitted))). For variations on this theme, see John Demos, Past, Present, and Personal: The Family and the Life Course in American History 32 (1986) (arguing that men "would retreat periodically [to the family] for repose, renewal, and inner fortification against the dangers [they] encountered elsewhere"); see also Jeffrey, supra note 112, at 28-29 (analyzing how urban Americans sentimentalized the family in attempt to recapture ideals of rural life); Barbara Laslett, The Family as a Public and Private Institution: An Historical Perspective, 35 J. Marriage & Fam. 480 (1973) (characterizing institution of private family as modern twentieth-century development, resulting from separation of familial and work activities).

n114. See supra text accompanying notes 37-43.

n115. Seneca Falls Convention Report, supra note 37, at 6 (emphasis added).

n116. Sarah M. Grimke, Marriage (1852-57) (unpublished manuscript), in The Female Experience: An American Documentary 87, 96 (Gerda Lerner ed., 1977).

N117. Address of Elizabeth Cady Stanton, on the Divorce Bill, Before the Judiciary Committee of the New York Senate, in the Assembly Chamber, Feb. 8, 1861, at 8 (Albany, Weed, Parsons & Co. 1861) (emphasis added); see also 1 History of Woman Suffrage, supra note 40, at 719 (similar address to Tenth National Woman's Rights Convention, 1860).

n118. The movement's rank appeal to sentimental conceptions of marriage and family can be understood as a shrewd tactic to present the movement's radical demands in a politically palatable form. See Glenn, supra note 26, at 78-79 (discussing Stanton speech quoted supra text accompanying note 117). But it also seems reasonable to assume that the cultural norms to which the movement appealed also played a role in shaping its conceptions of equality. See supra note 94 and accompanying text.

n119. The nineteenth-century woman's rights movement used the term "legalized prostitution" to criticize marriage as a relation of sexual coercion and compulsory maternity; in this period, the movement's demands for "voluntary motherhood" were focused on issues of marital rape, rather than abortion. For an account of how the "legalized prostitution" polemic figured in the movement's demand for sexual and reproductive autonomy in marriage, see Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 306-10 (1992) [hereinafter Siegel, Reasoning from the Body].

n120. The movement also argued that violence in marriage proved women's need for the vote. See supra text accompanying notes 41-43.

n121. Beecher, supra note 107, at 249.

n122. 61 N.C. (Phil. Law) 453, 457 (1868).

n123. 244 S.E.2d 338, 343-44 (W. Va. 1978).

n124. 46 Ala. 143 (1871); see supra text accompanying notes 62-65.

n125. Id. at 146-47; see also id. at 147 (noting that state constitution protects all citizens "without distinction of rank, caste or sex").

n126. Id. at 147 (quoting Schouler, Domestic Relations, supra note 98, at 59).

n127. Id. at 148 (quoting Schouler, Domestic Relations, supra note 98, at 59).

n128. See supra Subsection I.B.2.

n129. 1 Miss. (1 Walker) 156 (1824). There is evidence that the legal status of chastisement was in doubt in Mississippi during the 1820s. The defendant in Bradley requested the circuit judge to instruct the jury that if they found that the victim was the defendant's wife, they could not find the defendant guilty of assault and battery; the circuit judge refused this request, and the defendant appealed this decision to the state's supreme court, which affirmed. See id. at 157; see also Wyatt-Brown, supra note 70, at 281-82 (noting growing social discomfiture with wife beating despite minimal legal recourse).

n130. Bradley, 1 Miss. (1 Walker) at 158 (emphasis added).

n131. Citing Blackstone and other authorities, the judge in Bradley invoked the doctrine of chastisement, which allowed husbands to use "a whip or rattan, no bigger than [their] thumb, in order to inforce the salutary restraints of domestic discipline." Id. at 157. Not surprisingly, a continuing commitment to authority-based conceptions of marriage undergirds the opinion, manifested in the court's concluding exhortation: "Let the husband be permitted to exercise the right of moderate chastisement, in cases of great emergency, and use salutary restraints in every case of misbehaviour, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned." Id. at 158.

The claim that it would be unseemly to consider questions of domestic violence in a court of law makes an appearance in an 1838 Delaware case of a man fined for striking his pregnant wife; the defendant's counsel argued "that a husband had the right to chastise his wife; and it would not be politic to encourage these complaints in a court of justice, between persons bearing the relation of husband and wife." State v. Buckley, 2 Del. (2 Harr.) 552, 552 (1838) (emphasis added). In Buckley, the court allowed the prosecution, over the husband's objection that he had the right to chastise his wife, on the grounds that the chastisement administered in this case was excessive: "We know of no law that will authorize a husband to strike his pregnant wife a blow with his fist, such as has been inflicted on this woman.... Any undue or excessive battery by a husband of his wife either in degree, or with improper means, [is] indictable." Id. (emphasis added).

When the North Carolina Supreme Court upheld the right of chastisement in the 1864 case of State v. Black, 60 N.C. (Win.) 262 (1864), the court justified the prerogative on two grounds: the husband's authority over his wife ("[a] husband is responsible for the acts of his wife, and he is required to govern his household," id.) and the need to shield domestic conflicts from public scrutiny ("the law will not invade the domestic forum or go behind the curtain," id.). In Black, the traditional hierarchy-based rationale for chastisement law was intermingled with the new privacy-based rationale:

Certainly the exposure of a scene like that set out in this case can do no good. In respect to the parties, a public exhibition in the court-house of such quarrels and fights between man and wife widens the breach, makes reconciliation almost impossible, and encourages insubordination; and in respect to the public, it has a pernicious tendency; so, pro bono publico, such matters are excluded from the courts, unless there is a permanent injury or excessive violence or cruelty indicating malignity or vindictiveness.

Id. at 262 (emphasis added).

n132. State v. Hussey, 44 N.C. (Busb.) 123, 126-27 (1852) (emphasis added) (holding wives incompetent to testify against husbands in all cases of assault and battery, except where permanent injury or great bodily harm is inflicted).

n133. 61 N.C. (Phil. Law) 453 (1868).

n134. Id. at 454.

n135. Id.

n136. Id. (emphasis added).

n137. Id. at 456.

n138. Id. at 457.

n139. See supra text accompanying notes 103-13.

n140. Alcott, supra note 104, at 30-31.

n141. Cf. State v. Black, 60 N.C. (Win.) 262, 262 (1864):

In respect to the parties, a public exhibition in the court-house of such quarrels and fights between man and wife widens the breach, makes reconciliation almost impossible, and encourages insubordination; and in respect to the public, it has a pernicious tendency; so, pro bono publico, such matters are excluded from the courts, unless there is a permanent injury or excessive violence or cruelty indicating malignity or vindictiveness.

n142. Rhodes, 61 N.C. (Phil. Law) at 459 (emphasis added).

n143. The North Carolina Supreme Court reiterated this analysis of the criminal law governing assault and battery in marriage in State v. Edens, 95 N.C. 693, 696 (1886) (finding husband not indictable for slandering his wife).

n144. Rhodes, 61 N.C. (Phil. Law) at 458-59 (emphasis added).

n145. See supra text accompanying note 132 (quoting State v. Hussey, 44 N.C. (Busb.) 123, 126-27 (1852)).

n146. State v. Oliver, 70 N.C. 60, 61-62 (1874) (emphasis added).

n147. As we have seen in the divorce context, claims about marital cruelty were articulated in a similarly class-conscious manner. See supra notes 56-61 and accompanying text. See generally Griswold, Mental Cruelty, supra note 58, at 133-34:

By the last decades of the nineteenth century, neurasthenia had become part of the modern medical landscape, a symbol of civilization and a perverse badge of respectability among the middle class.... Thus, claims to happiness and complaints of cruelty had to be judged in light of the character and class of the individuals engaged in the suit.

n148. John F. Kasson, Rudeness & Civility: Manners in Nineteenth-Century Urban America 115 (1990) (footnote omitted).

n149. Id. at 67; see id. at 62 ("Apostles of civility battled for far bigger stakes than how best to eat asparagus.... Seeking to avoid overt conflict [in a rapidly industrializing democracy], they turned issues of class and social grievance back upon the individual. They redefined issues of social conflict to questions of personal governance, social propriety, and "good taste.'").

n150. Id. at 148 (quoting Robert De Valcourt, The Illustrated Manners Book: A Manual of Good Behavior and Polite Accomplishments 205 (New York, Leland, Clay 1855)).

n151. Id. at 157; see also id. at 157-61. Popular fiction of the era also emphasized the necessity of controlling anger, especially in the domestic context. See Carol Zisowitz Stearns & Peter N. Stearns, Anger: The Struggle for Emotional Control in America's History (1986):

Readers of domestic tales were constantly advised that angry people were people of bad character and therefore could be viewed as alien or different from oneself.... The "bad character" approach led to popular stories and even scientific accounts, well into the twentieth century, that stressed the distinctive physical features of angry people - red faced, with swollen veins, trembling - because these features denoted the destructiveness of angry behavior and its otherness, its location not in people in general but in bad people.

Id. at 45 (footnote omitted).

n152. Samuel R. Wells, New Physiognomy, or, Signs of Character at iii (New York, American Book Co. 1871), quoted in Kasson, supra note 148, at 149.

n153. See Kasson, supra note 148, at 198:

Because such tastes and practices are so habitual and because they are literally embodied in the individuals who share them, they take on the character of natural categories. It becomes easy for the socially privileged to regard their class position and prestige as the product of their natural attributes, including their superior "taste" and "breeding," rather than the cause, and for those lower on the social scale to accept their domination and to see the rich (in Scott Fitzgerald's famous phrase) as "different from you and me," set apart by nature rather than class and culture.

n154. State v. Rhodes, 61 N.C. (Phil. Law) 453, 458 (1868).

n155. Id.

n156. Bell, Wife Beaters, supra note 76, at 168 (quoting Charles B. Lore, chief justice of Delaware) (emphasis added).

n157. Hanaford, supra note 79, at 110; see id. at 109.

n158. See supra notes 81-89 and accompanying text.

n159. Rhodes, 61 N.C. (Phil. Law) at 457.

n160. See Joseph Story, Commentaries on Equity Pleadings, and the Incidents Thereof, According to the Practice of the Courts of Equity, of England and America 54-55 (Boston, Little, Brown & Co. 7th ed. 1865) (1857):

[A] feme covert cannot, at law, sue except jointly with her husband; for she is deemed to be under the protection of her husband; and a suit respecting her rights or interests must be with the assent and co<um o>peration of her husband. The rule in suits in equity is, in ordinary cases, the same as at law; and the husband must join in the suit.

Id. (citations omitted). But see id. at 56-58 & n.3 (discussing exceptions at equity allowing wife to maintain suit against her husband under name of male third party respecting her separate property or other rights secured by settlement).

n161. See, e.g., infra notes 164, 177 and accompanying text (quoting New York and District of Columbia statutes).

n162. Single women suffering sexual assault in this era generally lacked remedies in tort. See Lea VanderVelde, The Ways of Seduction, 48 Stan. L. Rev. 601 (1996) (tracing various common law doctrines that precluded single women from bringing tort suits in cases of sexual assault and analyzing enactment of laws in Reconstruction Era that gave women standing to sue). As VanderVelde notes, only one nineteenth-century woman's rights activist seems to have addressed the problem. See Caroline Healey Dall, Woman's Rights Under the Law, in Three Lectures Delivered in Boston, January, 1861, at 43 (Boston, Walker, Wise & Co. 1861) ("No single woman, having been seduced, has any remedy at common law; neither has her mother nor next friend. If her father can prove service rendered, he may sue for loss of service."), quoted in VanderVelde, supra, at 674 n.356. Reform of the common law seems to have occurred quietly, through code pleading reform rather than political activism of the sort that prompted passage of the married women's property acts. See VanderVelde, supra, at 673 ("With almost no public pressure and little public recognition of a need for reform of [the writ of seduction], the Field codes specifically advocated the ability of women to sue in their own rights and recover damages for seduction.").

n163. See Carl Tobias, Interspousal Tort Immunity in America, 23 Ga. L. Rev. 359, 383 (1989) ("Between 1863 and 1913, judges unanimously rejected interspousal personal injury claims.... From 1914 until 1920, jurists in seven states allowed such actions, and a comparable number denied them. During the ensuing half century, immunity slowly eroded.").

Today, the doctrine of interspousal tort immunity still bars claims of intentional torts, either in whole or in part, in nine states. Interspousal immunity doctrine has been abrogated in 41 states. See, e.g., Shook v. Crabb, 281 N.W.2d 616, 619 (Iowa 1979) ("While the state has an interest in encouraging marital harmony, to deny a forum for the redress of a wrong would do little to advance the compatibility of a married couple. It is difficult to see how denying access to the legal process could be said with any certainty to encourage domestic tranquillity."); Burns v. Burns, 518 So. 2d 1205, 1210 (Miss. 1988) ("The idea that maintenance of interspousal immunity will promote the public interest in domestic tranquillity is wholly illusory. If one spouse commits against the other an act which, but for the immunity, would constitute a tort, the desired state of matrimonial tranquility is necessarily destroyed."); see also Klein v. Klein, 376 P.2d 70 (Cal. 1962); State Farm Mut. Auto Ins. Co. v. Westlake, 324 N.E.2d 137, 139 (N.Y. 1974). Given that many states have abrogated the tort immunity doctrine quite recently, it remains to be seen how the legacy of the immunity rule will shape the law of interspousal torts. For example, in the course of abrogating the immunity rule, the Missouri Supreme Court dismissed concerns that "removal of the bar will lead to a rash of claims of the "unwanted kiss' and "rolling pin' variety." The court pointed out that such conduct (which it defined as "minor physical abuse, possibly constituting trivial torts") could be handled by courts on a "case-by-case basis" by "adjusting the duty of care required between married persons to accommodate the "give-and-take' of married life." S.A.V. v. K.G.V., 708 S.W.2d 651, 653 & n.3 (Mo. 1986).

One state, Georgia, has determined that the question of interspousal tort immunity should be abrogated where there is no marital harmony to be protected by application of the immunity rule. See Smith v. Rowell, 335 S.E.2d 461 (Ga. 1985); Harris v. Harris, 313 S.E.2d 88 (Ga. 1984).

One state, Utah, has abrogated the interspousal immunity doctrine with respect to intentional torts only. See Stoker v. Stoker, 616 P.2d 590 (Utah 1980).

Six other states have abrogated the doctrine, in whole or in part, as to negligent torts only. See, e.g., Lewis v. Lewis, 351 N.E.2d 526, 532 (Mass. 1976) ("Conduct, tortious between two strangers, may not be tortious between spouses because of the mutual concessions implied in the marital relationship. For this reason we limit our holding today to claims arising out of motor vehicle accidents.").

Two states still retain the doctrine of interspousal tort immunity in its entirety. See Raisen v. Raisen, 379 So.2d 352, 354 (Fla. 1979) (interspousal tort actions "disturb domestic tranquility; cause marital discord and divorce"); Smith v. Southern Farm Bureau Casualty Ins. Co., 174 So. 2d 122, 124 (La. 1965) ("This immunity exists, commendably, to maintain domestic tranquility and promote the stability of the family unit.").

For an inventory of state positions on interspousal tort immunity as of November 1995, see Leonard Karp & Cheryl L. Karp, Domestic Torts: Family Violence, Conflict and Sexual Abuse app. B at 383-85 (Supp. 1996).

n164. 1860 N.Y. Laws, ch. 90, 7 (1860) ("And the money received upon the settlement of any such action or recovered upon a judgment, shall be her sole and separate property."); see also Basch, supra note 17, at 164, 194-95 (discussing enactment of 1860 statute).

n165. Longendyke v. Longendyke, 44 Barb. 366, 366-67 (N.Y. Sup. Ct. 1863).

n166. Id. at 368.

n167. Id. at 369.

n168. See supra text accompanying note 104.

n169. Note that the plaintiff in this case was married for 30 years. Under the doctrine of marital service, her husband had property rights in the value of her labor for the entirety of this period, and, given judicial construction of the 1860 statute, most likely for the remainder of their married life as well. See Siegel, Modernization, supra note 38, at 2149-68.

n170. For an exceptionally close reading of the New York cases, see F.A. Erwin, Assault and Battery (Wife vs. Husband), 3 Univ. L. Rev. 67 (1897).

n171. 67 Me. 304 (1877).

n172. Id. at 304.

n173. Id. at 307.

n174. Id. (quoting State v. Oliver, 70 N.C. 60, 61-62 (1874)) (emphasis added).

n175. Id. at 308 (emphasis added).

n176. Thompson v. Thompson, 218 U.S. 611 (1910).

n177. Id. at 615-16 (quoting District of Columbia Code, 1155, 31 Stat. 1189, 1374 (1901)); see id. at 617. Justices Harlan, Holmes, and Hughes dissented. See id. at 619-24 (Harlan, J., dissenting).

n178. Id. at 617-18.

n179. Drake v. Drake, 177 N.W. 624, 625 (Minn. 1920) (emphasis added); see also Lillienkamp v. Rippetoe, 179 S.W. 628, 629 (Tenn. 1915) (stating that marriage reform legislation not intended "to empower a wife to bring an action against her husband for injuries to her person occurring during the coverture, thereby making public scandal of family discord, to the hurt of the reputation of husband and wife... unless such purpose clearly appears by the express terms of the act").

n180. Fiedeer v. Fiedeer, 140 P. 1022, 1023 (Okla. 1914) (allowing wife's tort suit against husband who shot her in head). For a similar review of the case law, see Steele v. Steele, 65 F. Supp. 329, 330 (D.D.C. 1946) (allowing wife to bring tort suit against ex-husband for assault that occurred before divorce was finalized).

n181. See Siegel, Modernization, supra note 38, at 2181-96.

n182. See id. at 2199-206.

n183. 42 N.W. 641 (Iowa 1889).

n184. Id. at 642. The Iowa Supreme Court asserted that "it is of the genius of our laws, as well as of our civilization, that matters pertaining so directly and exclusively to the home... are not to become matters of public concern or inquiry. This thought has vindication throughout our system of jurisprudence." Id.

n185. Foxworthy v. Adams, 124 S.W. 381, 383 (Ky. 1910).

n186. See Crowell v. Crowell, 105 S.E. 206, 210 (N.C. 1920) (allowing wife to sue husband for infecting her with venereal disease). In Crowell, the North Carolina Supreme Court indicated that the "true ground" for exempting a husband from liability to his wife "was because by the marriage she became his chattel"; "the fanciful ground assigned for this doctrine... is stated by some of the old writers to be the words in Genesis ii, 23, 24: "And Adam said, "This is now bone of my bones, and flesh of my flesh," adding that a man and wife "shall be one flesh."'" Id.

n187. During the nineteenth century, the mechanization of textile production resulted in a dramatic decrease in the cost of fabrics, and middle-class Americans began to use fabrics in a variety of ways in decorating their homes. See Katherine C. Grier, Culture and Comfort: People, Parlors, and Upholstery, 1850-1900, at 237-61 (1988). "Between 1850 and 1900, decorative window draperies became an increasingly important element of parlor decor in ordinary homes." Id. at 237. The authors of interior-decorating guides offered a variety of reasons for curtaining windows. As Janet E. Ruutz-Rees, author of Home Decoration, explained in 1881: ""So many delightful possibilities are concealed by a curtain; not to mention the skillful hiding of defects made feasible with such means, or the softening of angles and happy obliteration of corners.'" Id. The authors of Beautiful Homes noted in 1878 that curtains could protect residents from ""prying eyes, or... the feeling of fear at imagining some outside spectator gazing into our apartments during the evening hours.'" Id. at 245 (quoting interior-decorating guide of 1870s). Another decorator recommended using curtains to block out aspects of the "outer world" that inhabitants found distasteful. Id. (advising that ""if the outer world does not happen to be agreeable in that particular locality, it is well to employ ingenious devices for shutting it out'"); see also Kasson, supra note 148, at 175 (describing how "the use of fabrics spread... until by the late nineteenth century some parlors became virtual cocoons of gentility. Families covered the floor with carpets, shrouded the windows with thick draperies, hung curtains called portieres across the entrance, swathed center tables, mantel tops, and pianos with hangings and skirts....").

n188. Abbott v. Abbott, 67 Me. 304, 307 (1877) (quoting State v. Oliver, 70 N.C. 60, 61-62 (1874)); see also Miller v. Miller, 42 N.W. 641, 642 (Iowa 1889) (holding that court will not enforce husband's promise to compensate his wife because "public policy dictates that the door of such inquires shall be closed").

n189. See Note, Litigation Between Husband and Wife, 79 Harv. L. Rev. 1650, 1655-59 (1966) (discussing judicial view that "family matters simply are not justiciable in the sense of being properly resolvable in a judicial forum" in wide range of legal contexts).

n190. State v. Fulton, 63 S.E. 145, 145 (N.C. 1908) (quoting State v. Edens, 95 N.C. 693 (1886)) (upholding spousal tort immunity for slander).

n191. Schouler, supra note 98, at 59.

n192. Pleck, Domestic Tyranny, supra note 33, at 136.

n193. Id. at 137 (quoting Judge Bernhard Rabbino of the New York City court of domestic relations).

n194. Id. at 136-42; see Pleck, Criminal Approaches, supra note 50, at 44-45:

By the early twentieth century, judges of family courts... came to view criminal prosecution and police-like methods as unprofessional and outmoded. They believed that social casework methods were more efficient, humane, and better suited to handling the complicated dynamics of abusing families. Ironically, the greater the scrutiny in the family character of domestic violence, the lower the interest in its criminal side.

n195. International Ass'n of Police Chiefs, Training Key No. 16, Handling Disturbance Calls 94-95 (1968-69), quoted in Sue E. Eisenberg & Patricia L. Micklow, The Assaulted Wife: "Catch 22" Revisited, 3 Women's Rts. L. Rep. 138, 156 (1977) (omissions in original) (emphasis added).

n196. Del Martin, Battered Wives 93-94 (1976) (quoting Oakland Police Department's training bulletin) (emphasis added).

n197. See, e.g., Violence Against Women Act, Pub. L. No. 103-322, 108 Stat. 1796 (1994) (codified at 42 U.S.C.A. 13981 (West 1995)) (providing grants to help prevent sexual assault and to support battered women's shelters). See generally Developments in the Law - Legal Responses to Domestic Violence, 106 Harv. L. Rev. 1498, 1528-51 (1993) [hereinafter Developments in the Law] (discussing new state and federal responses to domestic violence).

n198. See supra text accompanying note 5.

n199. Bureau of Justice Statistics, U.S. Dep't of Justice, Violence Against Women: Estimates from the Redesigned Survey 1 (1995) [hereinafter Bureau of Justice Statistics].

n200. Id.

n201. Id.

n202. Laws Mandating Reporting of Domestic Violence: Do They Promote Patient Well-Being, 273 JAMA 1781 (1995) [hereinafter Laws Mandating Reporting of Domestic Violence] (citing Bureau of Justice Statistics, U.S. Dep't of Justice, Violence Between Intimates (1994)).

n203. Bureau of Justice Statistics, supra note 199, at 1.

n204. See id. at 4.

n205. Cf. Council on Scientific Affairs, Am. Medical Ass'n, Violence Against Women: Relevance for Medical Practitioners, 267 JAMA 3184 (1992) [hereinafter Violence Against Women], which observes that while

some surveys suggest nearly equal participation rates (ie, that about as many women as men have perpetrated at least one act of aggression), there is no measure of acts that are undertaken in self-defense. In general, men perpetrate more aggressive actions against their female partners than women do against their male partners, and men perpetrate more severe actions and are more likely to perpetrate multiple aggressive actions against their partner during a single incident than are women against male partners.

Id. at 3185-86 (citations omitted). See generally Angela Browne, When Battered Women Kill (1987) (discussing women who killed their batterers); Ann Jones, Next Time, She'll Be Dead: Battering & How to Stop It (1994); Ann Jones, Women Who Kill (1980) (describing patterns that prevail when women kill their batterers); Joan Zorza, Women Rarely Batter Men Except When Abused Themselves, N.Y. Times, Feb. 17, 1994, at A22 (emphasizing importance of context in evaluating domestic violence statistics).

n206. Joseph R. Biden, Domestic Violence: A Crime, Not a Quarrel, Trial, June 1993, at 56, 56 (quoting National Inst. of Justice, U.S. Dep't of Justice, Civil Protection Orders: Legislation, Current Court Practice, and Enforcement 4 (1990)).

n207. Violence Against Women, supra note 205, at 3184, 3186.

n208. Id. at 3185.

n209. Laws Mandating Reporting of Domestic Violence, supra note 202, at 1781 (reporting, also, that prevalence of domestic violence among patients in ambulatory care settings has been estimated to be between 20% and 30%).

n210. Violence Against Women, supra note 205, at 3186-87.

n211. Angela Browne, Violence Against Women by Male Partners: Prevalence, Outcomes, and Policy Implications, 48 Am. Psychologist 1077, 1077 (1993); see also id. at 1078 (observing that rape by male partners seems to occur most frequently in relationships in which male partner practices other forms of physical aggression; reviewing recent studies of the correlation).

n212. Josh Meyer, Police Records Detail 1989 Beating that Led to Charge: A Bloodied Nicole Simpson, Hiding in Bushes After 911 Call, Told Officers: "He's Going to Kill Me." Judge Overruled Prosecutors' Request that Simpson Serve Jail Time, L.A. Times, June 17, 1994, at A24 (emphasis added).

n213. See supra note 163.

n214. Model Penal Code 213.1 cmt. 8(c) (1980) (emphasis added); see Robin West, Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42 Fla. L. Rev. 45, 64 (1990) ("Proponents of the marital rape exemption typically assert that the state's important interest in promoting marital harmony and intimacy, or, alternatively, its interest in encouraging reconciliation of warring spouses, justifies the statute.").

n215. Pub. L. No. 103-322, 108 Stat. 1796 (1994) (codified at 42 U.S.C.A. 13981 (West 1995)).

n216. William Rehnquist, Chief Justice's 1991 Year-End Report on the Federal Judiciary, Third Branch, Jan. 1992, at 1, 3 (emphasis added). For more extended discussion of the Violence Against Women Act, and Chief Justice Rehnquist's remarks in particular, see infra Section IV.C.

n217. Blanche Crozier, Constitutionality of Discrimination Based on Sex, 15 B.U. L. Rev. 723, 748-49 (1935).

n218. 252 N.E.2d 800, 803-04 (Ind. 1969).

n219. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity 16 (1990).

n220. As I have observed in a recent study examining reform of the common law rules giving husbands property rights in their wives' labor:

The long history of the doctrine of marital service suggests that caste regimes do not survive by their rigidity, but instead through their malleability and adaptability. The law of marital status was able to survive premature news of its death in part because status discourse has this chameleon-like quality. In short, status talk is not always detectible as status talk. Frequently, it may disguise itself - even by masquerading in the language of love.

Siegel, Modernization, supra note 38, at 2210-11.

n221. See Leon F. Litwack, Been in the Storm So Long: The Aftermath of Slavery 366-71, 375 (1979) (discussing Black Codes); Julie Saville, The Work of Reconstruction: From Slave to Wage Labor in South Carolina, 1860-1870 (1994); C. Vann Woodward, The Strange Career of Jim Crow 22-23 (3d rev. ed. 1974) (discussing transition in regimes). See generally William Cohen, Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis, 42 J.S. Hist. 31 (1976) (discussing emergence of peonage, sharecropping, and particulars of labor abuses).

n222. For example, in 1867, when the Pennsylvania Supreme Court ruled that a railroad could segregate its passengers by race, it asserted:

The natural separation of the races is... an undeniable fact, and all social organizations which lead to their amalgamation are repugnant to the law of nature. From social amalgamation it is but a step to illicit intercourse, and but another to intermarriage. But to assert separateness is not to declare inferiority in either; it is not to declare one a slave and the other a freeman - that would be to draw the illogical sequence of inferiority from difference only.... When, therefore, we declare a right to maintain separate relations, as far as is reasonably practicable, but in a spirit of kindness and charity, and with due regard to equality of rights, it is not prejudice, nor caste, nor injustice of any kind, but simply to suffer men to follow the law of races established by the Creator himself, and not to compel them to intermix contrary to their instincts.

West Chester & Phila. R.R. v. Miles, 55 Pa. 209, 213-14 (1867) (emphasis added); see also id. at 212 (upholding regulation requiring racial segregation in seating "to prevent contacts and collisions arising from natural or well-known customary repugnancies" as "a proper use of the right of private property").

The Supreme Court employed similar reasoning in the Civil Rights Cases, 109 U.S. 3 (1883), when it struck down the Civil Rights Act of 1875, which prohibited race discrimination in transportation, inns, and theaters, on the grounds that the statute exceeded Congress's powers under the Reconstruction Amendments. The Court denied that race discrimination in accommodations reflected the white-supremacist values of chattel slavery, and instead depicted such discrimination as an exercise of discernment in personal associations. The Thirteenth Amendment did not authorize the accommodations statute, because

it would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business.

Id. at 24-25. To explain why the Fourteenth Amendment did not authorize the accommodations statute, the Court also invoked concepts of privacy, here in the form of a federalism argument. The Court held that Section 1 of the Fourteenth Amendment did "not authorize Congress to create a code of municipal law for the regulation of private rights" but instead provided "modes of redress against [state action] subversive of the fundamental rights specified in the amendment." Id. at 11. Federal legislation under the Fourteenth Amendment

cannot properly cover the whole domain of rights appertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State legislatures and to supersede them.

Id. at 13. (Gendered discourses of the private also supported federalism arguments in the nineteenth century, especially concerning family law. See infra text accompanying notes 311-15.)

Joseph Singer is writing a detailed and provocative account of the ways in which racial concerns shaped conceptions of public accommodations and private property during the Reconstruction Era. See Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property (1996) (unpublished manuscript, on file with author). For a fascinating account of the ways in which gender, class, and race interacted in producing the law of racial separation, see Barbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855-1914, 13 Law & Hist. Rev. 261 (1995).

n223. 163 U.S. 537, 551 (1896) (rejecting proposition that "social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races").

n224. Id. at 544, 551.

n225. Litwack, supra note 221, at 265. For an expression of this concern, see Miles, 55 Pa. at 213-14, quoted supra note 222.

n226. Judges called upon to reconcile Jim Crow with the Fourteenth Amendment disclaimed that they were enforcing a legal system predicated on values of white supremacy. By narrowly circumscribing the boundaries of law's "proper domain," legal elites defined an arena in which they could say that formal equality of citizenship prevailed between "the two races." Privacy talk, not hierarchy talk, was invoked to justify this restriction on the ambit of equal protection; thus, Plessy held that the Constitution would protect equality in "civil and political rights," but would not enforce equality in "social" rights, i.e., the "enforced commingling of the two races." Plessy, 163 U.S. at 551-52.

Over 60 years after Plessy was decided, Herbert Wechsler still viewed "freedom of association" as a "neutral principle" that justified a regime of separate-but-equal, and called into question the Court's decision in Brown. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 34 (1959):

But if the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant.... Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail?

n227. See Plessy, 163 U.S. at 543 ("A statute which implies merely a legal distinction between the white and colored races - a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color - has no tendency to destroy the legal equality of the two races, or re<um e>stablish a state of involuntary servitude."); see also Miles, 55 Pa. at 213-14 ("But to assert separateness is not to declare inferiority in either; it is not to declare one a slave and the other a freeman - that would be to draw the illogical sequence of inferiority from difference only.").

n228. See, e.g., Litwack, supra note 221, at 376-79 (explaining that post-Civil War labor regimes perpetuated dependence of freedmen on former masters).

n229. See Bryan S. Turner, Status 2-8 (1988) (discussing literature on status, with particular attention to sociology of ascriptive status groups, which are organized on basis of attributes over which individuals have little or no control, such as gender or race).

n230. For examples of the emergent interest in rule-equality, see supra note 222 (upholding racial segregation in accommodations) and supra text accompanying note 142 (announcing immunity for interspousal assault). See also Siegel, Home As Work, supra note 38, at 1170-73 (tracing emergence of rule-equality in marital inheritance rights during postbellum period). In this period, judges who engaged in justifying laws that tended to preserve race and gender stratification began expressly to disavow caste-based justifications for the rules. This was especially true in matters of race, because segregative practices had to be reconciled with federal antidiscrimination law, see supra notes 222-28 and accompanying text. Reform of gender status law through the married women's property acts proceeded more incrementally, with judges continuing to invoke the hierarchical tenets of marital unity doctrine as they interpreted the reform statutes throughout the nineteenth century; but, as reform progressed, judges began to repudiate overtly caste-based rationales and seek other reasons of "public policy" to justify status-enforcing features of the body of marriage law that emerged from reform, see, e.g., supra text accompanying notes 181-91.

n231. Some courts expressed a continuing commitment to the unity concepts of the common law; others expressed their concerns in the course of interpreting the married women's property acts, asserting that statutes in derogation of the common law were to be construed narrowly. See supra text accompanying notes 164-80.

n232. Paul Brest, The Supreme Court, 1975 Term - Foreword: In Defense of the Antidiscrimination Principle, 90 Harv. L. Rev. 1, 7-8 (1976) (discussing race discrimination).

n233. In reflecting on this question, it is helpful to consider the distinction that Austin Sarat and Thomas Kearns draw between "instrumental" and "constitutive" perspectives on the law-and-society relationship. See Austin Sarat & Thomas R. Kearns, Beyond the Great Divide: Forms of Legal Scholarship and Everyday Life, in Law in Everyday Life 21 (Austin Sarat & Thomas R. Kearns eds., 1993). Of the instrumentalist view, Sarat and Kearns observe:

Law, in the instrumentalist account, mirrors society. Changes in law tend to follow social changes and often intend to do no more than make those changes permanent. Legal rules are used to maintain, reproduce, and alter the everyday in conscious, rational, and planned ways. Instrumentalism denies that law is already an integral part of that which it regulates.

Id. at 25 (footnote omitted). While instrumentalism "conceives of law as largely external to the social practices it regulates," the constitutive conception of law detects its effects "in meanings and self-understandings rather than in the results of sanctions." Id. at 27.

Those who adopt the constitutive perspective believe that law permeates social life and that its influence is not adequately grasped when law is treated as an external, normative missile launched at independent, ongoing activities.... We are not, as instrumentalists suggest, merely pushed and pulled by laws that impinge on us from the outside. Rather, we have internalized law's meanings and its representations of us, so much so that our own purposes and understandings can no longer be extricated from them.

Id. at 29; Reva B. Siegel, In the Eyes of the Law: Reflections on the Authority of Legal Discourse, in Law's Stories 225, 226 (Paul Gewirtz & Peter Brooks eds., 1996) [hereinafter Siegel, In the Eyes of the Law] ("We are not always conscious of how legal discourse exerts authority in our lives, for the simple reason that we understand important aspects of our social universe through the language of the law"; law thus "plays a more pervasive and less perceptible role in ordering social relationships" than is often appreciated.).

n234. Cf. Robert W. Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57, 59-60, 102-13 (1984) (analyzing and deconstructing relationship between "law" and "society").

n235. The few accounts we have of domestic assault cases from the late nineteenth century report that men reasoned about their wives in the language of prerogative and property. See Cobbe, supra note 15:

Every brutal-minded man, and many a man who in other relations of life is not brutal, entertains more or less vaguely the notion that his wife is his thing, and is ready to ask with indignation (as we read again and again in the police reports), of any one who interferes with his treatment of her, "May I not do what I will with my own?' It is even sometimes pleaded on behalf of poor men, that they possess nothing else but their wives, and that, consequently, it seems doubly hard to meddle with the exercise of their power in that narrow sphere!

Id. at 62-63; see also Haag, supra note 50, at 462 ("The right of men to the property of their wives surfaces most perniciously in the language of possession and almost annihilistic sense of prerogative that color testimonies of domestic assault.").

n236. Cf. supra notes 129-32 and accompanying text.

n237. See Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America 120-26, 155-95 (1985) (discussing nineteenth-century attempts to regulate polygamy, contraception, and abortion); see also Siegel, Reasoning from the Body, supra note 119, at 282 (exploring nineteenth-century campaign to criminalize abortion and contraception); Sarah Barringer Gordon, "The Twin Relic of Barbarism": A Legal History of Anti-Polygamy in Nineteenth-Century America (1995) (unpublished Ph.D. dissertation, Princeton University) (offering in-depth account of campaign against polygamy).

n238. Compare Roe v. Wade, 410 U.S. 113 (1973) (concluding that right to privacy protects abortion decision) with Harris v. McRae, 448 U.S. 297 (1980) (finding that government program that pays for childbirth but not abortion expenses of poor women does not interfere with exercise of their constitutionally protected privacy right to make decisions about abortion). The gender-, class-, and race-salience of privacy discourses is also apparent in contemporary proposals for birth-deterring regulation of poor women (e.g., drug-dependent pregnant women and welfare recipients). See Reva B. Siegel, Abortion as a Sex Equality Right: Its Basis in Feminist Theory, in Mothers in Law: Feminist Theory and the Legal Regulation of Motherhood 43, 56-57 (Martha Albertson Fineman & Isabel Karpin eds., 1995) [hereinafter Siegel, Abortion as a Sex Equality Right] (comparing and distinguishing birth-compelling and birth-deterring regulation of women's conduct); Siegel, Reasoning from the Body, supra note 119, at 344 ("Would this society so readily contemplate criminal prosecution, "protective' incarceration, or custody-deprivation as responses to maternal addiction if the policies were to be applied to privileged women rather than the poor?... Today as in the past, judgments about motherhood in this society are delineated by class and race, as well as by sex."). See generally Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419, 1419-82 (1991) (demonstrating that constitutional privacy doctrines are applied in race- and class-salient fashion, and proposing new legal protections for women of color).

n239. It was for this reason that values of "privacy" came to play such a significant role in justifying racial and gender status law during the Reconstruction Era, explaining legal rules that might have been justified in hierarchy-based rhetoric during the antebellum era. See supra note 230 and accompanying text.

n240. Of all legal elites, judges are perhaps the most subject to the imperative to rationalize their action with "reasons"; the "split-the-difference" approach to compromise that characterizes legislative activity does not suffice to justify the act of judging. Finally, judges are trained in the art of interpretive "translation": They regularly apply old doctrines to new fact situations, seeking to do so in a fashion that has fidelity to the past. Cf. Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan. L. Rev. 395, 443 (1995) ("Translation yields different readings of what went on before only to make what went before understandable to the reader today. Its aim is not to change the past, but to recover it, as if (for we can always act as if) we can recover without changing.").

n241. See supra text accompanying notes 227-31.

n242. To date, few scholars have explored the common law roots of constitutional privacy doctrines. An exception is Barbara Woodhouse, who has provided a rich account of the diverse social forces shaping the Supreme Court's first family privacy cases: Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925). See Barbara B. Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as Property, 33 Wm. & Mary L. Rev. 995 (1992). Woodhouse demonstrates how the parental liberty interest recognized in Meyer and Pierce drew upon parental property interests in children of the sort long recognized in the Anglo-American common law tradition. See id. at 1036-50, 1064-68, 1089-91. On the common law tradition giving the male head of the household mastery over its members, see supra text accompanying notes 18, 102.

n243. For a skeptical evaluation of the emancipatory potential of privacy discourses, see Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law 101-02 (1987) (observing that there is something problematic in feminists "seeking protection [for abortion] behind a right to... privacy" when "the legal concept of privacy... has shielded the place of battery, marital rape, and women's exploited labor; has preserved the central institutions whereby women are deprived of identity, autonomy, control and self-definition"); Roberts, supra note 238, at 1463-71 (analyzing ways in which privacy discourses have failed to protect women of color). For a skeptical evaluation of the values of racial assimilation embraced by Brown, see Jerome M. Culp, Jr., Black People in White Face: Assimilation, Culture, and the Brown Case, 36 Wm. & Mary L. Rev. 665, 675-82 (1995) (arguing that Brown and cases following it replaced a regime of racial segregation with a regime of putatively race-neutral policies that tacitly privilege white over African-American culture). See also Anthony E. Cook, The Spiritual Movement Towards Justice, 1992 U. Ill. L. Rev. 1007, 1012 (remarking of Brown that "what was promised to be a program of integration has turned out to be one of assimilation in which the racist assumption of White superiority was left unchecked"); cf. Steven A. Holmes, Look Who's Saying Separate is Equal, N.Y. Times, Oct. 1, 1995, 4, at 1 (describing various forces in African-American community that have recently expressed support for new forms of racial separatism).

n244. See Siegel, In the Eyes of the Law, supra note 233, at 228-31 (tracing life of "colorblindness" trope in postslavery discourses of citizenship); see also J.M. Balkin, Ideological Drift and the Struggle Over Meaning, 25 Conn. L. Rev. 869, 872-73 (1993) (tracing "ideological drift" of colorblindness trope).

Arguments against affirmative action do not simply employ the language of colorblindness and formal equality; they often explicitly invoke the mantle of the civil rights movement of the 1950s and 1960s. So, for example, when Senator Robert Dole announced his support for California legislation prohibiting affirmative action, he asserted that "the voters of California can strike a blow for the principle of equal opportunity by passing the California Civil Rights Initiative," explaining that "the initiative is a direct descendant of the Civil Rights Act of 1964." Bob Dole, End of Quotas, Discrimination Deserves Vote, Ariz. Republic, Nov. 27, 1995, at B7. Opponents of affirmative action programs draw upon the language of the civil rights tradition in diverse ways. For instance, see Michelle A. McManus, End the Discrimination of Affirmative Action, Detroit News, Oct. 27, 1995, at A9:

Continued affirmative action quotas relegate women and minorities to second-class citizen status. The message it sends declares them inferior to men and whites and in need of government regulation to get a job, gain entrance to college or earn a scholarship. America makes victims of more than half its citizens with the sham of affirmative action.

See also Paul C. Roberts, The Rise of the New Inequality, Wall St. J., Dec. 6, 1995, at A20 ("Over the past two decades we have inadvertently created a caste society in which there are two classes of citizens: those who are protected by civil rights laws and white males, who are not."). In these arguments, affirmative action and other forms of race-conscious remedies are equated with the racism the civil rights movement fought. See, e.g., Jonathan J. King, Affirmative Action Serves to Destroy and Divide Nation, Fresno Bee, Sept. 23, 1995, at B5 ("Liberals.... are locked into an orthodoxy that requires human beings to be classified by race by government authorities; a practice as evil as anything they are fighting."); Joseph Neff, Future of Race-Based Districting May Ride On N.C. Case, Raleigh News & Observer, Dec. 5, 1995, at A1 (""There should not be racial quotas for any political office, and districts should not be drawn with the view of getting racial results.... If we have this sort of thing, we might as well go back to the era when we had separate entrances to buildings and separate seating in theaters.'" (quoting plaintiff in voting rights case)); Richard Rorty, Color-Blind in the Marketplace, N.Y. Times, Sept. 24, 1995, 7 (Book Review), at 9 (quoting author Dinesh D'Souza as arguing that ""today the most formidable ideological barrier facing blacks... is not racism but antiracism'").

Of course, this dynamic extends well beyond the affirmative action context. In a forthcoming account of the attack on "political correctness," Jamie Boyle, Mark Hager, and Jamie Raskin argue that

the most remarkable shift in conservative rhetoric in the nineteen nineties was the wholesale - rather than retail - adoption of the language of formal equality, and its use to attack everything from speech codes and affirmative action, to communications policy and product liability law. This shift has been going on for a long time, but it is at its clearest and most conscious in the remarkable linkages that a group of conservative intellectuals drew between the regulation of speech on campuses, minority scholarships, affirmative action hiring and feminist or Afrocentrist teaching. To put it bluntly, the PC debate is the historical moment when the language of formal equality - the lingua franca of the early civil rights movement - passes from liberals to conservatives.

James Boyle et al., "Politically Correct": Conservative Mythologies in Higher Education 4 (1995) (unpublished manuscript, on file with author).

n245. Feminist and antiracist arguments about "essentialism" are now being appropriated and transformed by opponents of race-conscious remedies, much as the colorblindness argument was. Initially, scholars analyzing gender and race stratification described how an observer's social status or position could influence her perception of social relationships, arguing that this kind of positional bias often results in "essentialist" claims - generalizations about a group that reflect the experience of certain, socially privileged group members rather than the experience of all group members. See, e.g., Feminist Legal Theory: Readings in Law and Gender 201-80 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991) (group of essays by Robin West, Angela Harris, and Patricia Cain written between 1988 and 1990 that expose, respectively, gendered assumptions of male legal theorists, racial assumptions of white feminist legal theorists, and sexual assumptions of heterosexual feminist legal theorists); Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (1988) (analyzing ways in which feminist claims about "women" often reflect experience and concerns of white and otherwise privileged members of group). By the late 1980s, the critique of essentialism was appropriated by critics who were not interested in problems of positional bias, but instead objected to the possibility of making any general claims about the distinctive situation, experience, or "voice" of groups that have suffered discrimination. See generally Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 Cal. L. Rev. 741, 754-55 (1994) (describing "essentialism" debate).

With this new focus, the critique made its way into Supreme Court jurisprudence, supplying a new basis for objecting to "benign," race-conscious civil rights measures (e.g., race-based preferences in the award of radio-broadcast licenses; race-conscious design of voting districts). Not only did such race-based programs discriminate against white people; now they were also said to discriminate against people of color by making "stereotypical" assumptions about the perspectives or opinions of people of color. See, e.g., Miller v. Johnson, 115 S. Ct. 2475, 2486 (1995) ("When the State assigns voters on the basis of race, it engages in the offensive and demeaning assumption that voters of a particular race, because of their race, "think alike, share the same political interests, and will prefer the same candidates at the polls.'" (quoting Shaw v. Reno, 113 S. Ct. 2816, 2827 (1993))); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 604 (1990) (O'Connor, J., dissenting) ("Such [race-based] policies may embody stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts - their very worth as citizens - according to a criterion barred to the Government by history and the Constitution.").

n246. See Balkin, supra note 244.

n247. See supra text accompanying notes 227-31.

n248. One might oppose affirmative action because it is against the interests of white males, but such a reason could be characterized as an interest in preserving race and gender stratification itself. Cf. Robert Pear, Report to Clinton Has a Mixed View on Minority Plans, N.Y. Times, May 31, 1995, at A1 ("A confidential report prepared for the President... analyzes the reasons for "white male resentment' of [affirmative action]"; during recent speech to California Democratic party, the President declared, ""This is psychologically a difficult time for a lot of... so-called angry white males,' who feel they have been treated unfairly."). If instead one opposes affirmative action out of fidelity to principles of equality that Martin Luther King espoused, one stands on moral high ground. Thus, when the President recently attributed opposition to affirmative action to the resentment of "angry white males," see Pear, supra, the editor of the New Republic publicly chastised him, complaining that "Mr. Clinton can only understand the opposition as a response of "white males.' He doesn't seem to have noticed that there are other principles involved, such as those of fairness and liberty." Andrew Sullivan, Let Affirmative Action Die, N.Y. Times, July 23, 1995, 4, at 15.

n249. See infra text accompanying notes 254-75; see also Siegel, In the Eyes of the Law, supra note 233, at 230.

n250. See supra note 245.

n251. Of course, nothing in the account of modernization I offer requires that new status discourses be generated out of coopted protest discourses. For example, the discourse of affective privacy was only tangentially related to the advocacy of the woman's rights movement, which embraced companionate marriage concepts, but generally deployed them in more egalitarian terms. On the other hand, my account of the modernization of status regimes does explain why old protest discourses are especially attractive candidates for cooptation into status discourses. As I indicate in the text, old protest discourses provide seemingly unimpeachable grounds for defending the structure of a status regime when its legitimacy is under attack.

n252. See supra text accompanying note 220.

n253. See Siegel, Abortion as a Sex Equality Right, supra note 238; Siegel, Modernization, supra note 38; Siegel, Reasoning From the Body, supra note 119.

n254. See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976) (applying intermediate standard of scrutiny which requires "that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives"); Loving v. Virginia, 388 U.S. 1 (1967) (applying "strict scrutiny" to race-based state action).

n255. See infra text accompanying notes 260-80 (discussing impact on domestic violence policies).

n256. For a popular expression of this conviction, see King, supra note 244, at B5:

From the creed that pervasive racism defines America has developed an equally destructive axiom: The wrongs done to individuals in the past must be remedied by ensuring that the victims' ethnic or racial groups are proportionally represented in every institution and endeavor. It does not matter if we are generations removed from the wrongs.

Id. (emphasis added). See also Pamela Newkirk, At Lunch with Bebe Moore Campbell, N.Y. Times, Nov. 15, 1995, at C1 ("Take affirmative action and the rage of the white male. "I understand where they're coming from,' [Campbell] said. "They're saying: "My parents didn't own slaves. Let's get on with it."'"); Noel R. Wood, What Next? Ban Old Glory?, Roanoke Times & World News, July 31, 1993, at A9 (arguing that Senators who voted to end patent protection for Daughters of Confederacy seal wronged "[author's] great grandfathers... who did not own slaves").

The view that social stratification by race and gender is the result of overtly classificatory practices of the past (rather than facially neutral practices of the present) is expressed in diverse ways by actors in the legal system. See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 465 (1980) (""The effects of past inequities stemming from racial prejudice have not remained in the past. The Congress has recognized the reality that past discriminatory practices have, to some degree, adversely affected our present economic system.'" (quoting H.R. Rep. No. 468, 94th Cong., 1st Sess. 1-2 (1975))); Podberesky v. Kirwan, 956 F.2d 52, 57 (4th Cir. 1992) (refusing to award race-based remedy absent showing of "some present effect" of past discrimination where "identifiable discrimination [as distinct from facially neutral policies] occurred a number of years in the past"), cert. denied, 115 S. Ct. 2001 (1995); Paul Gewirtz, Remedies and Resistance, 92 Yale L.J. 585, 675 n.245 (1983) (terming attempts to "reduce[ ] an underrepresentation of blacks in the employer's workforce attributable to past discrimination" "the more traditional justification for affirmative action"). But cf. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 322 (1987) (challenging "false dichotomy" shaping Supreme Court's view "of facially neutral actions as either intentionally and unconstitutionally or unintentionally and constitutionally discriminatory").

n257. See Washington v. Davis, 426 U.S. 229 (1976) (requiring plaintiffs who challenge facially neutral state action as violating equal protection to demonstrate that challenged practice was animated by discriminatory purpose).

n258. See Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979) (""Discriminatory purpose'... implies more than intent as volition or intent as awareness of consequences.... It implies that the decisionmaker... selected or reaffirmed a particular course of action at least in part, "because of,' not merely "in spite of,' its adverse effects." (citation omitted)).

n259. In a recent voting rights decision, the Court bluntly observed that "the distinction between being aware of racial considerations and being motivated by them may be difficult to make." Miller v. Johnson, 115 S. Ct. 2475, 2488 (1995). Because it is so hard to prove discriminatory purpose under the Equal Protection Clause, most institutions, practices, and values are constitutionally characterized as race-neutral. For example, in Miller the Court characterized the practice of drawing voting-district lines to reflect "compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests" as an expression of "traditional race-neutral districting principles." Id.

n260. See, e.g., supra notes 49, 55, 196 and accompanying text.

n261. 429 U.S. 190 (1976).

n262. Cf. Barbara Hart, State Codes on Domestic Violence: Analysis, Commentary and Recommendation, 43 Fam. Ct. Juv. & J. 3, 3 n.5 (1992) ("While it is true that as many as 5% of those harmed by domestic violence are men, the use of gender neutral language masked the reality that those most at risk for life-imperiling violence are women."); Margaret Thornton, Feminism and the Contradictions of Law Reform, 19 Int'l J. Soc. L. 453, 460 (1991) (observing that ""spousal abuse' suggests a non-existent neutrality" and "the term "domestic violence' itself disguises which sex is responsible for the preponderance of the battering").

n263. See supra text accompanying note 88.

n264. See Hobson v. Pow, 434 F. Supp. 362, 367 (N.D. Ala. 1977) ("No compelling, or even rational, state policy has been suggested to explain why conviction of men for assault and battery against the spouse is a cause for disqualification while the conviction of women for the same offense is not disqualifying.").

n265. Equal protection litigation prompted (but did not require) the California legislature to revise the statute, codified at Cal. Penal Code 273.5 (West 1988). See People v. Cameron, 53 Cal. App. 3d 786, 797 (1975) (upholding constitutionality of wife-beating statute but suggesting that California legislature might consider making statute "applicable to both spouses" and suggesting that recommended change might "afford[ ] some additional protection to the marital state"). See generally People v. Gutierrez, 217 Cal. Rptr. 616, 618 (Ct. App. 1985) (describing interaction between courts and legislature prompting transformation of gender-specific wife-beating statute into legislation regulating assault between spouses or cohabitants).

n266. See Ga. Code Ann. 26-13 (Harrison 1977); 1979 Md. Laws 307, 11F; 1976 Tenn. Pub. Acts 565 (codified at Tenn. Code Ann. 39-602 (1981)).

n267. See Pleck, Domestic Tyranny, supra note 33, at 194.

n268. Cf. Susan Brownmiller, Against Our Will: Men, Women and Rape 424-25 (1975) (recommending gender-neutral sexual assault laws). This advocacy of formally gender-neutral laws reflects the comparative logic that marked 1970s feminism. See Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1286 (1991); Nadine Taub & Wendy W. Williams, Will Equality Require More Than Assimilation, Accommodation or Separation from the Existing Social Structure?, 37 Rutgers L. Rev. 825, 827 (1985); Joan C. Williams, Deconstructing Gender, 87 Mich. L. Rev. 797, 798-99 (1989). But feminist litigators sought to reform the substance, as well as the form, of domestic violence policies. Reforming only the language of the policies while leaving their underlying norms intact would not protect women from their partners' abuse. As Carrie Menkel-Meadow observes, "eliminating "gender bias' by neutralizing husbands and wives and mothers and fathers into more equal spouses and parents (that ignored the situated differences of these roles) helped expose how formal and rhetorical equality was not entirely responsive to women's needs for substantive, actual or outcome equality." Carrie Menkel-Meadow, Mainstreaming Feminist Legal Theory, 23 Pac. L.J. 1493, 1506 (1992) (citation omitted). Indeed, some feminist activists are now concerned that policymakers' use of gender-neutral language in dealing with issues of domestic violence actually aggravates the problem by providing the appearance of reform while masking the continuing gender-specificity of the problem. In view of this concern, "many feminists [now] insist on using "battered woman' in preference to terms such as "spouse abuse' which are not gender specific in order to emphasize that women, not men, are almost always the target of intraspousal [sic] abuse." Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev, 1, 25 (1991); see Wini Breines & Linda Gordon, The New Scholarship on Family Violence, 8 Signs 490, 510-13 (1983) (criticizing ways in which language of "family violence" obscures gendered differences in manifestations of violence).

n269. See supra text accompanying notes 202-05.

n270. The leading case in this area is Hynson v. City of Chester Legal Dep't, 864 F.2d 1026, 1031 (3d Cir. 1988) ("If the categories used by the police in administering the law are domestic violence and nondomestic violence, this is not sufficient to raise a claim for gender-based discrimination absent a showing of an intent, purpose or effect of discriminating against women."). For other examples of circuit court decisions following Hynson, see Navarro v. Block, 72 F.3d 712 (9th Cir. 1996) (reversing district court's dismissal of equal protection claim on summary judgment because issues of material fact remained as to whether county had custom of not classifying domestic violence 911 calls as emergencies, in which case policy might fail even rational basis test); Eagleston v. Guido, 41 F.3d 865, 878 (2d Cir. 1994); Ricketts v. City of Columbia, 36 F.3d 775, 779 (8th Cir. 1994); Brown v. Grabowski, 922 F.2d 1097, 1101 (3d Cir. 1990); Watson v. City of Kansas City, 857 F.2d 690 (10th Cir. 1988). An early case that stimulated public awareness of the sexually discriminatory implications of traditional domestic violence policies, Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984), assumed for the purpose of denying a motion to dismiss that plaintiff's allegations of gender-based discrimination were true, noting that in the vast number of cases, it is the husband who has abused his wife; but the court did observe that "it may develop that the classification in the instant case is not one based on gender, but instead consists of all spouses who are victims of domestic violence - male and female." Id. at 1528 n.1; see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990) (where complaint alleged that responding police officer "stated that he did not blame plaintiff's husband for hitting her, because of the way she was "carrying on.'... such remarks strongly suggest an intention to treat domestic abuse cases less seriously than other assaults, as well as an animus against abused women"), distinguished in Navarro, 72 F.3d at 717 (stating that Navarros had failed to offer any evidence of the sort of "invidious intent or motive" found in Balistreri).

Thus, a municipality defending a domestic violence policy couched in "gender neutral" terms need only show that it meets the "rational relation" test. See infra text accompanying notes 277-80.

n271. See Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979) (""Discriminatory purpose'... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker... selected or reaffirmed a particular course of action at least in part "because of,' not merely "in spite of,' its adverse effects...."). In general, courts evaluating equal protection challenges to facially neutral domestic violence policies have reasoned that plaintiffs seeking to prove sex discrimination would have to show that state actors acted in accordance with Feeney's definition of discriminatory purpose. For circuit court opinions setting forth this framework, see Navarro, 72 F.3d at 712; Eagleston, 41 F.3d at 878; Ricketts, 36 F.3d at 781; Hynson, 864 F.2d at 1031; Watson, 857 F.2d at 696-97. See also Soto v. Carrasquillo, 878 F. Supp. 324, 329 (D.P.R. 1995); Smith v. City of Elyria, 857 F. Supp. 1203, 1211 (N.D. Ohio 1994); cf. Pinder v. Commissioners of Cambridge, 821 F. Supp. 376, 385 (D. Md. 1993) ("Policies that are facially neutral may trigger intermediate scrutiny when the policy has a disproportionate impact on women that results from purposeful or intentional discrimination.").

n272. Most courts that have abrogated the doctrine of interspousal immunity, in whole or in part, have done so on common law grounds. See supra note 163 (discussing current state of interspousal tort immunity law). A number of courts have explicitly rejected claims that the doctrine of interspousal immunity should be abrogated on equal protection grounds. In Alfree v. Alfree, 410 A.2d 161 (Del. 1979), the Delaware Supreme Court stated that "based on current precedent, there appears to be no Federal constitutional limitation on the interspousal immunity doctrine." Id. at 163. Although Alfree was overruled in Beattie v. Beattie, 630 A.2d 1096, 1100 (Del. 1993), the Beattie court abrogated the doctrine on common law grounds only. In Nicpon ex rel. Urbanski v. Nicpon, 495 N.E.2d 1193 (Ill. App. Ct. 1986), the court rejected plaintiff's argument that the Illinois interspousal immunity statute (applicable to negligent torts only) should be analyzed under doctrines of intermediate scrutiny, and held that the statute survived equal protection challenge under standards of "minimum scrutiny." Id. at 1196; see also Locklair v. Locklair, 256 F. Supp. 530, 533 (D.S.C. 1966) (upholding doctrine and reasoning that "there is no discrimination nor denial of equal protection of the laws... inasmuch as the Georgia law applies equally to husbands as well as to wives"); State Farm Mut. Auto. Ins. Co. v. Palmer, 463 N.E.2d 129, 131 (Ill. App. Ct. 1984) (holding that interspousal immunity doctrine is abrogated as to intentional torts only, and that interspousal immunity is not unconstitutional on either due process or equal protection grounds); cf. Paiewonsky v. Paiewonsky, 446 F.2d 178, 182 (3d Cir. 1971) (holding that "legislative interest in promoting domestic tranquility is sufficiently compelling" and that "the immunity doctrine... has a reasonable relationship to the interest sought to be furthered by it").

Several courts have held that interspousal immunity fails even the rational basis test. See, e.g., Moran v. Beyer, 734 F.2d 1245, 1248 (7th Cir. 1984); Jones v. Jones, 376 S.E.2d 674, 675 (Ga. 1989). Some courts, in abrogating the doctrine on common law grounds, have added a single-sentence comment about equal protection considerations. See, e.g., Burns v. Burns, 518 So. 2d 1205, 1211 (Miss. 1988); Price v. Price, 732 S.W.2d 316, 320 (Tex. 1987).

n273. See Robin West, Progressive Constitutionalism: Reconstructing the Fourteenth Amendment 62 (1994) ("[A] court conceivably could decide that, ancient history notwithstanding, a [marital rape] statute recently cleansed of gender-specific language is freed of its misogynistic heritage and that its recent legislative history provides the sole source of its constitutionality."); West, supra note 214, at 46-48, 63-68 (reviewing arguments for and against constitutionality of marital rape laws, and discussing difficulty of challenging marital rape laws, especially when they are redrafted in gender-neutral terms). For an argument that both gender-specific and gender-neutral marital rape laws discriminate against women and violate the Equal Protection Clause, see Note, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv. L. Rev. 1255, 1267-72 (1986).

n274. In Borelli v. Brusseau, 16 Cal. Rptr. 2d 16 (Ct. App. 1993), an equal protection challenge to a gender-neutral version of the old common law doctrine of marital service was summarily rejected on the grounds that the gender neutrality of the rule cleansed it of any historical taint:

We agree with the dissent that no rule of law becomes sacrosanct by virtue of its duration, but we are not persuaded that the well-established rule that governs this case deserves to be discarded. If the rule denying compensation for support originated from considerations peculiar to women, this has no bearing on the rule's gender-neutral application today.

Id. at 20; see also Siegel, Modernization, supra note 38, at 2196-99 (discussing Borelli).

n275. Obviously, domestic violence policies were not the only aspects of family law affected by the emerging sex discrimination case law of the 1970s. For example, even before the Court held in Orr v. Orr, 440 U.S. 268, 283 (1979), that gender-based alimony statutes violated the Equal Protection Clause, "about 40 states had already "desexed' alimony and authorized its award, under appropriate circumstances, to either spouse." Doris Jonas Freed & Henry H. Foster, Jr., Divorce in the Fifty States: An Overview, 14 Fam. L.Q. 229, 252 (1981). In the years after Orr, the remaining states followed suit. See id. at 253.

In this period, some states adopted statutes that eliminated gender distinctions from whole bodies of law. See, e.g., id. (describing New York statute adopted in 1980 that removed gender distinctions from "Domestic Relations Law, Family Court Act, and other existing statutes"); Note, The Significance of Stokes v. Stokes: An Examination of Property Rights upon Divorce in Georgia, 16 Ga. L. Rev. 695, 705-06 n.55 (1982). The Note discusses 1979 Ga. Laws 466, which provided in pertinent part:

"It is the intent of this Act to revise and modernize certain laws of this State which relate to intrafamilial duties, rights and obligations, including laws relating to divorce, alimony, support of minors, husband and wife, parent and child, enforcement of support, and related matters, so as to comply with those standards of equal protection under the law announced in the United States Supreme Court decision in the case of Orr v. Orr...."

n276. Making a race- or gender-specific law facially neutral may have very different consequences, depending on a variety of factors, including: the nature of the law, the nature of the social practice it regulates, and the ways in which the regulated practice allocates dignitary and/or material privileges. While the topic is far too vast to explore in the present context, several examples should suffice to illustrate my point. Removing racial distinctions from a school assignment policy may facilitate the integration of a school system, but will have less of an integration effect if the policy endorses "neighborhood" school assignments under conditions of residential segregation. Removing gender distinctions from a law conscripting persons for military service will facilitate the integration of the armed forces, but will have less of an integration effect if the conscription policy specifies height, weight, and strength requirements that relatively few women can meet. Removing gender distinctions from the law of rape will not much alter the social conditions under which rapes are practiced; nor will removing gender distinctions from domestic violence law much alter the practice of "spouse beating." Making such laws facially neutral does not alter the constraints on men who assault women; rather, it extends the scope of the prohibition to include women. Presumably this reform will have a marginal deterrent effect on women's conduct, but none on men's conduct. Nor is it clear what "symbolic" message is communicated by making gender-specific laws regulating gender-salient practices into gender-neutral laws. To disrupt the subordinating practice in these cases, it is necessary to alter the norms of the laws that regulate it. In short, formal equality will disrupt certain subordinating practices, and leave others relatively undisturbed - possibly even masking the nature of the harm they are inflicting.

n277. 761 F. Supp. 503 (S.D. Ohio 1991).

n278. Id. at 512 (emphasis added).

n279. See supra text accompanying notes 192-96 (discussing rise of criminal law policies that treated marital violence in therapeutic paradigm premised on assumption that "domestic trouble cases are not criminal in a legal sense").

n280. An early equal protection case, Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984), prompted public awareness of the inadequate protections afforded women by traditional domestic violence policies. See Carolyne R. Hathaway, Comment, Gender Based Discrimination in Police Reluctance to Respond to Domestic Assault Complaints, 75 Geo. L.J. 667, 669 (1986) ("Thurman v. City of Torrington was the first reported case in which a court held that police conduct treating victims of domestic violence differently than other assault victims constitutes gender based discrimination violative of the equal protection clause."). In Torrington, the court assumed for the purpose of denying a motion to dismiss that the plaintiff's allegations of sex discrimination were true, while observing that "it may develop that the classification in the instant case is not one based on gender, but instead consists of all spouses who are victims of domestic violence - male and female." 595 F. Supp. at 1528 n.1. In litigation after Torrington, municipalities have generally been able to reduce their risk of adverse judgments by couching domestic violence policies in gender-neutral terms. See supra note 270 and accompanying text.

n281. These criteria are formal, rather than historical or sociological. See, e.g., Personnel Adm'r v. Feeney, 442 U.S. 256 (1979) (characterizing veterans' preferences for civil service employment as "facially neutral" policies); Geduldig v. Aiello, 417 U.S. 484 (1974) (characterizing rules governing pregnancy-disability policy as "facially neutral"); see also Siegel, Reasoning from the Body, supra note 119, at 354 n.373 (discussing question as it bears on equal protection challenges to abortion policies); id. at 360 n.396.

n282. See, e.g., Laurence H. Tribe, American Constitutional Law 16-21, at 1514-15 (2d ed. 1988); Lawrence, supra note 256, at 317; David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 1014 (1989).

n283. Cf. West, supra note 214, at 76-79 (proposing federal civil rights legislation that would, inter alia, abolish marital rape exemption).

n284. Pub. L. No. 103-322, 40302, 108 Stat. 1941 (1994) (codified as amended at 42 U.S.C.A. 13981 (West 1995)).

n285. See S. Rep. No. 138, 103d Cong., 1st Sess. 48-50 (1993).

n286. The civil rights remedy appeared in Title III of the first version of VAWA, S. 2754, 101st Cong., 2d Sess. (1990), and remained in subsequent versions of the bill until its enactment as Pub. L. No. 103-322, tit. IV, subtit. C., 40302, 108 Stat. 1941 (1994) (codified at 42 U.S.C.A. 13981 (West 1995)).

n287. See S. Rep. No. 138, supra note 285, at 51:

Title III's civil rights provision simply makes explicit what the Supreme Court has already held: that violence motivated by gender is not an individual crime or a personal injury, it is a form of discrimination. This country has been using Federal civil rights laws to fight discriminatory violence for 120 years. Title III is a logical extension of this tradition.


State laws do not provide, and by their nature cannot provide, a national antidiscrimination standard. While traditional criminal charges and personal injury suits focus on the harm to the individual, a civil rights claim redresses an assault on a commonly shared ideal of equality. This was Congress's understanding over 120 years ago when it passed the first civil rights laws against violent discrimination; it remains true today.

Congress viewed the statute as an exercise of its powers under Section 5 of the Fourteenth Amendment, as well as the Commerce Clause. See infra note 304 and accompanying text.

n288. See infra text accompanying notes 291-99.

n289. For example, S. 15 defined "crime of violence motivated by gender" as "any crime of violence, as defined in this section, including rape, sexual assault, sexual abuse, abusive sexual contact, or any other crime of violence committed because of gender or on the basis of gender." S. 15, 102d Cong., 1st Sess. 301(d)(1) (1991). After mark-up, the bill defined ""crime of violence motivated by gender'" as ""any crime of violence [as defined in 18 U.S.C. 16] committed because of gender or on the basis of gender.'" S. Rep. No. 197, 102d Cong., 1st Sess. 28 (1991) (quoting S. 15, 301(d)(1), as amended). For the current language of the statute, see infra text accompanying note 301.

n290. S. Rep. No. 197, supra note 289, at 27-28 (quoting S. 15, 301(a), as amended); see also S. Rep. No. 138, supra note 285, at 51 ("Violence motivated by gender is not an individual crime or a personal injury, it is a form of discrimination.").

n291. While there were other constitutional concerns raised about the civil rights remedy, during the 102d Congress criticism began "to coalesce around the theme of federalization." Victoria Nourse, The Violence Against Women Act: A Legislative History 37 (Sept. 6, 1995) (unpublished manuscript, on file with author).

n292. Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong., 1st Sess. 80 (1993) [hereinafter Crimes of Violence] (statement by Conference of Chief Justices on S. 15, Violence Against Women Act of 1991, adopted by the State-Federal Relations Committee of the Conference of Chief Justices at meeting in Scottsdale, Arizona on Jan. 31, 1991).

n293. Id.

n294. Id. at 80-81 (emphasis added).

n295. Id. at 83-84.

n296. Id. at 75 (quoting Report of the Proceedings of the Judicial Conference of the United States, Sept. 23-24, 1991, at Asheville, North Carolina).

n297. Id. In 1993, after certain modifications were made to the civil rights remedy, the Judicial Conference changed from a stance of opposition to one of taking "no position" on the provision. See id. at 73 (Report of the Proceedings of the Judicial Conference of the United States, Mar. 16, 1993, Washington, D.C.).

n298. See Rehnquist, supra note 216, at 1, 3.

n299. See Nourse, supra note 291, at 51-52; see also Sally F. Goldfarb, Gender-Motivation and the Violence Against Women Act: A New Chapter in Federal Civil Rights Law 23-24 (unpublished manuscript, on file with author).

n300. 42 U.S.C.A. 13981(b) (West 1995).

n301. Id. 13981(d)(1). Senate Report No. 138 observes:

For clarity, section 302(d)(1) has been revised from previous versions of the act. Although discriminatory motivation has always been required by the act, this section has been amended to require that crimes of violence be "due, at least in part, to an animus based on the victim's gender." This new language elucidates the committee's intent that a victim alleging a violation under this section must have been targeted on the basis of his or her gender. The defendant must have had a specific intent or purpose, based on the victim's gender, to injure the victim.

S. Rep. No. 138, supra note 285, at 64.

n302. See 42 U.S.C.A. 13981(c) (West 1995).

n303. Id. 13981(e)(1).

n304. See id. 13981(a) (citing U.S. Const. amend. XIV, 5 and U.S. Const. art. I, 8).

n305. The inquiry presupposes that acts of rape and domestic violence can be gender-motivated like acts of arson can be racially motivated: Some acts of arson may result from discriminatory animus, while others may not. But a strong case can be made that acts of rape and domestic violence are better analogized to white-on-black lynching - a practice employed within a historically specific status regime by status-superiors to dominate and subdue those they considered their status-inferiors. If rape and domestic violence are more akin to lynching than arson, then it makes little sense to attempt to determine which acts of rape and domestic violence spring from a discriminatory or status-based animus and which do not.

n306. Ruth Shalit, Caught in the Act, New Republic, July 12, 1993, at 12, 14 (emphasis added) (quoting Senator Orrin Hatch).

n307. See supra note 301 and accompanying text.

n308. See Rehnquist, supra note 216, at 1, 3 (emphasis added).

n309. Crimes of Violence, supra note 292, at 80-81 (emphasis added).

n310. See supra text accompanying notes 292-95. This tradition of reasoning about intimate assault is so powerful that it also deflects attention from the many forms of nonmarital assault the statute covers.

n311. While states regulated family law during the eighteenth century, the question of the federal government's power to regulate the field was not, to my knowledge, much discussed in this era. See Sylvia A. Law, The Founders on Families, 39 U. Fla. L. Rev. 583, 586 (1987) ("Virtually nothing in the original constitutional debates directly addresses the situation of women and families."). Michael Grossberg observes that state "judicial dominance of domestic relations grew out of an abiding commitment to local control that lay at the heart of nineteenth-century American family law... [and] stemmed from the deep-seated republican aversion to centralized government in general." Grossberg, supra note 237, at 295.

n312. 62 U.S. 582, 584 (1858) (announcing that "we disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony"). Judith Resnik offers a detailed account of the domestic-relations exception to federal diversity jurisdiction in her study of the gendered premises of federal jurisdiction. See Judith Resnik, "Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. Rev. 1682, 1739-50 (1991).

n313. See 62 U.S. at 592; id. at 600-01 (Daniel, J., dissenting).

n314. Id. at 602 (Daniel, J., dissenting) (emphasis added).

n315. See supra text accompanying notes 133-38. To recall, in Rhodes, the North Carolina Supreme Court observed that

however great are the evils of ill temper, quarrels, and even personal conflicts inflicting only temporary pain, they are not comparable with the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber. Every household has and must have, a government of its own, modelled to suit the temper, disposition and condition of its inmates.

State v. Rhodes, 61 N.C. (Phil. Law) 453, 457 (1868).

n316. For a recent domestic-relations-exception case quoting the privacy language of Barber's dissent, see Ankenbrandt v. Richards, 504 U.S. 689, 702 (1992):

Enforcement of... validly obtained [divorce or alimony] orders does not "regulate the domestic relations of society" and produce an "inquisitorial authority" in which federal tribunals "enter the habitations and even into the chambers and nurseries of private families, and inquire into and pronounce upon the morals and habits and affections or antipathies of the members of every household."

Id. (quoting Barber, 62 U.S. at 602 (Daniel, J., dissenting)).

n317. Ellen DuBois has provided a detailed account of the controversies about woman suffrage precipitated by the drafting of the Fourteenth Amendment. See DuBois, supra note 36, at 53-78. Similarly, Amy Stanley has described the debates about marital status law precipitated by enactment of the 1866 Civil Rights Act, which barred discrimination on the basis of race in laws governing the right to make and enforce contracts, the right to sue and to participate in litigation, and laws concerning the security of persons and property. See Amy Dru Stanley, Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation, 75 J. Am. Hist. 471, 477-81 (1988). Stanley observes:

Opponents of the radical program of Reconstruction challenged every assertion that the link between freedom and contract justified federal interference with local law. Not only did they raise the specter of black suffrage; they conjured up equally dire images of federal regulation of marriage and sexuality. Radicals like Sumner and Thaddeus Stevens took pains to dissociate the project of emancipation from questions of gender. Yet the issues remained joined - not only by the arguments of states' rights men and feminists but also by the legal codes of southern states that classified master and slave and husband and wife as parallel parts of the law of domestic relations.

Id. at 477. Opponents of Reconstruction argued that "as "domestic relations'... both slavery and marriage were governed exclusively by state law," and that the 1866 Civil Rights Act "encroached on state codes that ordered relations between the races and fixed the terms of the marriage contract." Id. at 479. Republican proponents of Reconstruction

responded by limiting the compass of emancipation, steadfastly denying that it altered either the institution of marriage or the status of wives. Rather, they drew a sharp line between race and gender distinctions at law and qualified the guarantee of "civil rights" to bar only discrimination based on "race, color or previous condition of slavery."

Id. In this spirit, one Republican pointed out to Congress that the Act

permits the States to say that the wife may not testify, sue, or contract. It makes no law as to this.... Your State may deprive women of the right to... contract... but if you do so, or do not so as to one race, you shall treat the other likewise.... If you do discriminate, it must not be "on "account' of race, color, or former condition of slavery."

Cong. Globe, 39th Cong., 1st Sess. 1293 (1866) (statement of Rep. Shellabarger); see also Stanley, supra, at 479-80 (quoting Shellabarger). See generally Patricia Lucie, On Being a Free Person and a Citizen by Constitutional Amendment, 12 Am. Stud. 343, 350, 349-56 (1978) (describing efforts of Reconstruction Congress to change law of racial status without changing law of gender status, and noting that in this period Republicans "judged that when a measure went far enough to limit a state's freedom to legislate on married women's property, family law, marriage, or divorce it went too far in altering the balance between the federal government and the states"); Siegel, Home As Work, supra note 38, at 1148 n.271 (reviewing efforts of Reconstruction Congress to assert federal authority over questions of race discrimination, while leaving to the states prerogative to regulate matters concerning questions of women's citizenship, such as suffrage and marital status law).

n318. See Orr v. Orr, 440 U.S. 268 (1979) (striking down gender-based alimony statute on federal equal protection grounds); see also supra note 275 and accompanying text (describing how equal protection decisions during 1970s prompted states to replace gender-specific family law rules with gender-neutral family law rules).

n319. Cf. Naomi R. Cahn, Family Law, Federalism, and the Federal Courts, 79 Iowa L. Rev. 1073, 1105 (1994) (noting similarity between Court's rhetoric confining family law to state tribunals and rhetoric confining women to private sphere).

n320. See supra text accompanying note 306; see also Shalit, supra note 306, at 14 (reporting that Senator Dennis DeConcini, another Republican cosponsor of VAWA, agreed with Senator Hatch's interpretation).

n321. Antidiscrimination law often refers to emotional or psychological states; but the law plays a crucial role in constructing the states of mind to which it refers. Our notions of discrimination are as importantly legal as they are psychological.

n322. State v. Oliver, 70 N.C. 60, 61-62 (1874) (criminal immunity case), quoted in Abbott v. Abbott, 67 Me. 304, 307 (1877) (tort immunity case).