NetNews Usenet Archive 1993 #3/NN_1993_3.iso/spool/alt/dadsrig/3539

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From: [e-mail] (Mark Eckenwiler)
Newsgroups: alt.dads-rights,soc.men,soc.women,misc.legal
Subject: Re: Sexual Discrimination
Message-ID: <[e-mail]>
Date: 27 Jan 93 15:34:35 GMT
References: <[e-mail]> <[e-mail]> <[e-mail]>
Organization: Superseding Information, Inc.
Lines: 46

In <[e-mail]>, [e-mail] sez:
>In <[e-mail]>, [e-mail] sez:
>>
>>Given that women are awarded either sole custody or primary custody
>>(usually something like a 75/25 split) in roughly 85% of all divorces
>>in this country in which the divorcing couple are parents of children
>>under age eighteen, despite laws in virtually every state that
>>emphatically set forth that judges should NOT be biased by gender in
>>awarding said custody of children, are the judges and referees of the
>>domestic relations courts of the United States of America guilty of
>>sexual discrimination?

>  See
>Washington v. Davis, 426 US 229 (1976).
>
>Under _Washington v. Davis_, mere "disparate impact" isn't enough.  If
>you actually want to discuss this intelligently, you'll need to read
>and understand that decision first.

Actually, on further reflection last night I remembered an even more
relevant case.  In _McCleskey v. Kemp_, 482 U.S. 279 (1987), the
Supreme Court held that statistics showing disproportional application
of the death penalty to blacks would not suffice to overturn the
sentence in a particular case.  Moreover, the Court expressly noted
with disapproval that allowing such claims "could easily be extended
to apply to claims based on unexplained discrepancies that correlate
to membership in other minority groups, *and even to gender*."  Id. at
316-17.

If broad-based statistical evidence of uneven treatment isn't enough
to prove that a State's application of the death penalty is
constitutionally infirm, it's difficult to imagine that similar
evidence concerning child custody -- an important liberty interest, to
be sure, but perhaps a wee bit lower on the scale -- is going to
impress the courts.

(I don't particularly like the result in _McCleskey_, but that doesn't
alter the fact that anyone raising analogous arguments will have to
confront it.)


--
        "Maybe I'm mistaken, maybe I'm not.  Frankly, I really don't
         give a damn . . . ."    - Paul Havemann ([e-mail])
                                   in <[e-mail]>
       Mark Eckenwiler    [e-mail]     ...!cmcl2!panix!eck