The Roots of Resistance: The Social Justice Context of Sexual Harassment Law

wga_posterEarlier this year, Scandal star Kerry Washington brought sexual harassment into the spotlight with her portrayal of the embattled Anita Hill in HBO’s Confirmation. The movie dramatizes how Hill herself made sexual harassment a topic of high-profile, nationwide debate when she came forward to speak out against Clarence Thomas during his 1991 Supreme Court confirmation hearings.

Hill’s testimony gave resolve to others who had experienced similar treatment in the workplace, ushering in a 40-percent increase in the number of sexual harassment claims filed with state and federal agencies in 1991 and 1992. But as inspiring as her testimony was, Hill stood on the shoulders of brave women before her who confronted sexual harassment and helped advance a body of law that makes workplaces, schools, and other institutions safer spaces. That body of law now protects people against “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature,” as the U.S. Equal Employment Opportunity Commission summarizes.


The fight against sexual harassment is closely connected to the long struggle for freedom among African Americans.


The breakthrough cases in sexual harassment law provide a revealing look at the short and surprising history of the battles, both in and out of court, that brought the issue into public consciousness. It is a history that shatters popular perceptions of feminism’s second wave and brings to light an overlooked dimension of another fight for social justice: the Civil Rights Movement.

Two Landmark Legal Decisions

When Mechelle Vinson applied for a job at Capital City Federal Savings in 1974, she was only 19 years old, but she had already had part-time jobs at several businesses around Washington, D.C., including a shoe store and an exercise club. For Vinson, lessons in supporting herself had come early. A strained relationship with her father had led her to drop out of high school and make repeated attempts to run away from home. She got married at “14 or 15,” because, as she recounted later, “I thought if I get married, I don’t have to go through problems with my father.” Continue reading

Reproductive Justice?

President Bill Clinton stands by as Ruth Bader Ginsburg is sworn in as associate Supreme Court Justice in 1993

President Bill Clinton stands by as Ruth Bader Ginsburg is sworn in as associate Supreme Court justice in 1993

When Justice Antonin Scalia died on February 13, 2016, it was the death of more than just one man. For the first time in 20 years, the fairly reliable conservative tilt of the Supreme Court vanished. Now there were four generally liberal justices, three remaining consistently conservative justices, and Anthony Kennedy, a moderate who, though usually conservative, could move to the left, especially on social issues, as we saw in his eloquent opinion in support of same-sex marriage. If Kennedy voted with the conservatives, it would result in a tie, not a 5-4 decision. In case of a tied vote on the Supreme Court, the lower court ruling holds, and if there are conflicting rulings in different circuits, we continue with different law in different parts of the country.

Or the court could order a rehearing of a case once a new justice is seated.


The makeup of the Supreme Court is a glaring example of how much is at stake in presidential elections.


The political wheels started turning immediately. Senate Majority Leader Mitch McConnell almost immediately announced that Scalia’s seat should be filled after “the American people” weigh in during the presidential election — Republicans always seem to forget that the American people have already weighed in twice by making Barack Obama president. This categorical rejection of any Obama nominee, no matter who, is unprecedented. Scalia’s seat was apparently sacred, and could only fairly be filled by a Republican appointee. McConnell does not seem to consider that the next president might also be a Democrat.

The change in the balance of the court was apparent in the first of two cases concerning reproductive health that were scheduled to be heard this month. (The second case, Zubik v. Burwell, will be argued on March 23.) At SCOTUSblog, Lyle Denniston analyzed the oral arguments in Whole Woman’s Health v. Hellerstedt. It was always clear that the outcome would hinge on Justice Kennedy, and, before Scalia’s death, that in all likelihood the Texas law requiring abortion doctors to have admitting privileges at nearby hospitals, and abortion clinics to meet ambulatory surgical clinic requirements, would be upheld. Continue reading

Judging Sex: From Bowers v. Hardwick to Lawrence v. Texas

Tyron Garner, left, and John Lawrence, right, react to the decision in Lawrence v. Texas.

Tyron Garner, left, and John Lawrence, right, react to the decision in Lawrence v. Texas. Image: Metro Weekly

This week, two related Supreme Court cases both mark anniversaries.

Twenty-seven years ago (and yes, I totally had to get out my calculator for that one), on June 30, 1986, the Supreme Court issued its opinion in Bowers v. Hardwick. In it, the court concluded, “The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” That is, even though previous courts had established and upheld a constitutional right to privacy when it came to some matters of sexual health — such as in Griswold v. Connecticut and Roe v. Wade — states were free to enact laws that made it illegal for people to engage in “homosexual sodomy” — basically, outlawing same-sex couples from having oral or anal sex.


June 26 is the 10th anniversary of Lawrence v. Texas, which struck down sodomy laws nationwide.


On its way to the Supreme Court, the relevant appeals court held that laws that discriminated against same-sex couples’ consensual sexual activities violated an individual’s “fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.” However, other courts of appeals had issued rulings in conflict with that sentiment. When the Supreme Court issued its ruling in Bowers, it explicitly rejected that same-sex sexual activity fell under the same constitutional right to privacy:

No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.

However, another date in June — the 26th, to be specific — marks the 10th anniversary of a different case involving gay rights: Lawrence v. Texas. That ruling reversed and overturned the court’s decision in Bowers.

So in those 17 years between Bowers and Lawrence, what changed? Continue reading