Part I-Romantic Paternalism-The Ties That

Author:Pamela J. Smith
Position:Assistant Professor, Boston CoUege Law School.

Page 109


I am a Black woman.1 I have indeed written about Black women and am very interested in the Uves, challenges, and successes of Black women.2 These anieles are not, however, specifically about Black women. They are, instead, about identifying institutionally supported White privilege, regardless of whether it is express or implied. The institution is limited to the judiciary's interpretation and application of Title VII of the Civil RightsAct.

I find it necessary to have a preface to these articles because people seem to think that as a Black woman, the article should be exclusively or primarily about Black women.3 In fact, one person actually stated that the article would be sooo much more interesting ifl simply wrote about Black women. As if as a Black woman, my sole expertise is limited to the Black woman's experience. Since Part I is not about Black women, this person lamented that I "did not understand the social construction of the Black woman's experience." As if I did not understand that his attempts to pigeonhole my scholarship had everything to do with the Black woman's experience. After all, if you are Black andfemale, all you are capable ofwriting about is Black women, right?

Another colleague inferred that throughout this article, where I setforth the contours of romantic patemalism and the contours of judicial affinity, he was waitingfor the "goodpart." You know, the part where I, a Black woman, would compare and contrast White women's experience with that of Black women; the part where I would decry romantic patemalism as not applying to Black women; the part where I would rake White women over the coals for their privileges; and the part where I would somehow argue thatPage 110romantic patemalism anaVor judicial affinity should be applied equally to Black women. In essence, this person was lookingfor the Black woman 's critique because I ama Black woman.

These two articles are about judicial affinity.4 Judicial affinity is a term that Ifind is descriptive ofthe courts' role in ensuring that White women are both privileged and restricted economically despite the mandates ofTitle VII ofthe Civil Rights Act of 1991. In these two articles judicial affinity will be used as either a verb or a noun. As a verb, judicial affinity describes the courts' participation in creating and solidifying economic hierarchies despite the mandates against anti-discrimination in Title VII As a noun, it describes the effect ofthe courts' preference for certain groups.

Judicial affinity, in these articles, is revealed in two distinct ways. First, in Part I-Romantic Patemalism, judicial affinity for White women is revealed by examining how White women have been treated historically, identifying common strands ofadvantages and disadvantages, and then following these strands throughout time to determine whether the advantages and disadvantages remain, especially in how the judiciary interprets and applies Title VIL This first step, therefore, involves a comparison of White women to White women at different points in time.

Second, in Part II-Romantic Patemalism, judicial affinity is revealed in modern interpretations of Title VII by comparing how judges treat plaintiffs who come befare them seeking redress for some form of race/gender employment discrimination.5 This mechanism to reveal judicial affinity involves exploring how White women are treated, how Black women are treated, and how Black men are treated under the "sex plus" jurisprudence of Title VII The differential treatment among these subgroups ofthe historicallyPage 111oppressed reveis an age-old economic hierarchy that continues to exist today because of judicial ajfmity. In essence, both aspects of judicial affinity reveal a racial/gender economic hierarchy in the judicial opinions under Title VIL

As previously stated, ihese anieles are not primarily about Black women. They are, however, about privilege-the privileges that White women receive as White women and the price White women payfor those privileges. These two articles are also about the privilege the courts exercise to ensure that Black people continue to struggle economically. These two articles explore how economic privileges are awarded to race/gender subgroups based upon historical economic access.

With these prefatory remarks in mind, let me begin my formal introduction to Part I-Romantic Patemalism.

Page 112

I Introduction

"The law, I learned, can liberate: it is both the cage and the key. "6

It is, perhaps, well known that law has been a very restricted cage for White women. It is less well known that the law has acted as a key to this restricted cage. The law as cage and key ensures that White women receive some advantages under the law, but also suffer some disadvantages. For instance, while White women have been the primary economic beneficiaries of Title VE of the Civil Rights Act 1991 (hereinafter Title VII)7 and affirmative action,8 this race/gender subgroup preference for White women in judicial application has gone almost wholly unrecognized. As a result, when anti-affirmative action rhetoric abounds, the focus tends to be on people of color who are the secondary and tertiary beneficiaries of affirmative action, rather than on White women who are the primary beneficiaries.

Ironically, the law that has been interpreted to benefit White women also continues to restrict them. Thus, the law, though liberatory in one sense, has been restrictive in another sense, being a key to a wider cage but a cage nonetheless. The economic advantages that White women have receivePage 113come with a price.9This price is analogous to the price White women have historically paid under romantic paternalism. As a result, romantic paternalism of oid, with its benefits, limitations and restrictions, remains today and is best seen through judicial affinity. In this article, judicial affinity is revealed in two different ways by examining how White women have been treated historically. In reviewing how White women have been treated historically, this article will identify historical advantages and disadvantages and then follow these throughout time to determine whether the advantages and disadvantages remain. This first step, therefore, involves a comparison of White women to White women at different points in time. By comparing the aspects of historical romantic paternalism with the aspects of modern judicial affinity, this article will show that law is and has been the cage and the key for White women. In this vein, Part II of the article defines the contours of historical romantic paternalism, identifying some of its advantages and disadvantages. Part m of the article explores how these advantages and disadvantages began to expand as time passed and more White women needed to participate in the public economic arena. Part IV identifies judicial affinity, a new form of romantic paternalism in the judicial opinions applying and interpreting Title VII. Part V discusses some of the benefits White women have obtained under romantic paternalism.

II Romantic Paternalism of Old: Law as a Cage

Since the early 1970s the United States Supreme Court has taken a form of judicial notice of the discrimination that White women have faced.10 In Equal Protection Clause jurisprudence the Court consistently states: "There can be no doubt that our Nation has had a long and unfortunate history ofPage 114sex discrimination. Traditionally, such discrimination was rationalized by an attitude of 'romantic paternalism' which in practical effect, put women, not on a pedestal, but in a cage."11 It is necessary to recognize several important aspects of this statement regarding romantic paternalism. First, romantic paternalism was only relevant to White women as a race/gender subgroup that is generally race invisible and gender visible in the courts. Race is rarely a disadvantage from which White women suffer.12 For White women, gender is a focal point of vulnerability and the point at which they suffer discrimination.13 Second, romantic paternalism was both a cage and a pedestal. It provided advantages and disadvantages, neither of which can be ignored.

Under romantic paternalism, White women were seduced into a restricted and locked cage.14 The seduction involved benefits in exchange for hidden restrictions, which will be discussed more fully below. Yet, vis-a-vis Black people, romantic paternalism promised benefits to all White women. Certainly romantic paternalism had a class component, primarily benefitting

Page 115middle-class and upper-middle class White women.15 Yet, all White women could aspire to and potentially achieve the romantic patemalism ideal of a White wife and mother who was entirely dependent upon the White male for economic access and...

To continue reading