The concept of ‘equality’ is traditionally associated with the rise of the philosophy of liberal individualism. It also is often cited as the key animating principle of modern American feminism. Indeed, the concept of equality has been central to feminist legal thought and politics. It is sometimes suggested that the history of equality and the history of contemporary feminism are to a large extent conterminous. It was advocacy of the idea that all human beings are by nature free, equal, and endowed with the same inalienable rights, which first led women to challenge their inferior legal status. Feminists in the early 20th century relied on the concept of equality in confronting the disadvantages and discrimination that were inherent in the founding of the nation and development of its laws.
So too, over the past four decades, as modern feminists have confronted gender skewed distributions of power, we have looked to equality. Yet a politics of subordination and domination still seems embedded in society and its ideological and structural institutions, including law. In our struggles we have often felt confined to the philosophical and jurisprudential concepts handed down by our forefathers. No concept has been more productive – at least as measured in terms of page counts and numbers of footnotes generated -- than equality. Why is it that the realization of gender equality -- even after all these years of theorizing, arguing, and strategizing -- remains strangely illusive?
We hold conferences and workshops to explore the modern problems with equality as a concept of reform. Mention is made that the commitment to equality can be inhibited by public initiatives, institutional culture, and private conduct. There are also “perennial debates about differences.” Those differences are not only the ones perceived between women and men. A concern with differences transcends that basic gender category to question delete to be the appropriateness of seeking equality in different spaces -- the public and political aspects of life perhaps considered more appropriately equalized than the family. The suggestion is that equality lies uneasily within the “private” realm.
The Family and Equality
In The Illusion of Equality, a book published in 1991, as well as in articles developed in the 1980’s, I argued that equality and gender neutrality were not appropriate concepts to employ in reforming the family and family law. The gist of my argument then was that the family, as our most gendered institution, was not susceptible to the imposition of equality as it was understood in American law. Outside of the family we seemed wedded then (as now) to a regime of equality which mandated equal or sameness of treatment. I suggested what we needed in the family was not formal or rule equality, but some notion of substantive or result equality that considered past circumstances and future obligations.
The imposition of a mere formal equality regime would only further and deepen existing inequalities. I identified three sites of entrenched inequality affecting most marriages. First, is wage and employment inequality, which existed in the market. Next, is the inequality that persisted in family negotiations over whose individual interests should be sacrificed for the larger family good -- a process that systematically disadvantaged women due to their lower earnings and culturally imposed altruism (they were the ones who were supposed to be making sacrifices for others). Finally, there were the inequalities that would be carried on into the future -- the inequalities that arose post-divorce with the responsibilities of custody overwhelmingly assigned to women. Maternal custody and difficulty collecting even inadequate child support awards assured continuation and exacerbation of the unequal burdens associated with care-work that typically disadvantage women in the paid workforce.
I note that in our now gender-neutral family law world, little has actually changed in regard to the existence or implications of these three forms of family inequality. The gender neutrally worded equality based reforms are in place, successful on a rhetorical level. But structural family disadvantages typically continue to burden women more than men. Not a lot has changed within the family. What has changed, however, is the way I understand the implications of these inequalities, what they signify and what is necessary in terms of responding to them.
My hope in 1991 was that we might fashion a more substantive or result sensitive version of equality in the family context -- allow unequal or different treatment of divorcing spouses in order to address the inherent inequalities of position. This more result oriented version of equality would be considered “just” and appropriate in that it would satisfy the needs that arose because one spouse typically assumed primary responsibility for children both within and after marriage.
I now talk about that sense of needs in terms of dependency and vulnerability. This articulation may not be any more palatable to those who buy into the rhetoric of independence and self-sufficiency, but I think it is more theoretically promising. Dependencies are multiple and complex in form – and they attach to institutions as well as individuals. There are two types of dependency with which I have been concerned. On the one hand, dependency is inevitable – part of the human condition, developmental in nature. On the other hand, those who care for inevitable dependents, while providing an essential societal service, are themselves dependent upon resources in order to undertake that care. Those resources must be supplied by society through its institutions.
I still believe in the critique of equality I developed in the 1980’s and 90’s and the underlying problems with the imposition of equality in the family it revealed. My subsequent work, particularly developing a theory of dependency that implicates both state and market, has convinced me that equality is also an insufficient objective when applied beyond the family. In fact, some of the very same reasons that formal or rule equality is inappropriate for the family illuminate why it is also inadequate for allocation problems in the larger society. Formal equality is inevitably uneven equality Existing inequalities abound throughout society and a concept of equality that is merely formal in nature will not address them.
Of course, a strong distinction between family and society is incoherent theoretically. The family is not a separate sphere isolated from the norms and standards applied in the larger society. The notions we have about equality resonate across societal institutions. This is true on an ideological level – it is also true on a structural level. The nature and functioning of other societal institutions profoundly affects the nature and shape of the family. By the same token, the nature and functioning of the family profoundly affects other societal institutions. The metaphor of "symbiosis"1seems more appropriate to describe the family in relationship to the state than does the separate spheres imagery.
The family is located within the state -- they are interactive and define one another. Alterations in the scope or nature of one institution will correspondingly alter the scope or nature of the other. By the same token, if equality is unrealized – unrealizable -- in the family, chances are that this reflects the failure of the equality in the larger society.
Of course, one way to look at our feminist dilemma over equality is to realize that under its terms as currently understood in the United States we (women) have attained equality – we have achieved our objectives in ways that are meaningful consistent with our current political climate. We might even say we inhabit a post-equity world. Are laws guarantee equal citizenship -- prohibit discrimination -- our equality regime guarantees access and opportunity to women on a par with men. We have the right to sameness of treatment and freedom from recognition of our gender differences in all manner of public life. Women’s political and civil rights are formally ensured. We have access to opportunity -- can get an education, practice a profession, earn money, own property, vote, serve on a jury, hold office and so on. And, note that this conferral of equality on women is an expansion of the ideal that takes nothing away from men. It is a win-win situation….theoretically.
However, our equality is not only all encompassing, it is also crude – non-discerning -- a gender-blind monolith, encompassing all within its embrace. Men also can claim the protection of gender equality should their gender occasion different, unfavourable treatment. They can do so even if they are privileged as an individual or as a member of an advantaged group. They can do so even against a member of a subordinated group. It is the fact of discriminatory treatment that represents the affront to equality, not the relative unequal position of the person seeking a remedy. Since our equality is based on an anti-discrimination or sameness of treatment principle different treatment is suspect, unless there is some legitimate basis for distinguishing among individuals or groups. This equality rejects (at least in regard to gender) affirmative governmental measures designed to raise the unequal to a more equal position.
This vision of equality has the same problems that I fretted over in the family context back in 1991 – it operates within a configuration of existing structural, social, societal and individual inequalities. So, we might formally have equal membership in both family and society as an abstract entitlement, but the benefits of that belonging are unevenly distributed through existing social and cultural structures. In other words, there is no level playing field and we don’t have a concept of equality that will allow us to try to even things up a bit, except minutely, and then mostly in the context of affirmative action programs related to race. Our equality is weak, its promise largely illusory because it fails to take into account the existing inequalities of circumstances.2
It is as though these other -- material, cultural, social -- inequalities were the products of natural forces beyond the ability of the state or law to remedy or rectify. They may be beyond the will of the state to alter under current ideological configurations, but they are certainly not natural. The state and law structure institutions confer senses of entitlement and value, including through an equality regime that facilitates some results and privileges some persons over others.
I want to suggest two related tactics we might productively try to challenge the existing equality regime. Both involve tying the concept of equality to something else in order to shift our perspective and provide new questions for theoretical investigation. First, we must consider how equality has been strategically paired with and tamed by other concepts and ideals over time. Equality is only one component of citizenship – it is only one of the parameters that establish the ideal relationship between state and individual. Equality, like other components, must often be word reconciled with competing or conflicting qualities or guarantees of citizenship.
Equality, as well as these other values is dynamic – the respective and relative positions of these values can change over the course of a nation’s history and in response to its experiences. Not surprising, different aspirations and expectations, for state and individual, inform different ideological and political positions on equality. The balances struck between equality and other values thus differ across history, within and among nations, as well as being complexly expressed across competing philosophies and perspectives. We must fight for the right to determine the nature and weight given to equality in that balance.
In relation to the question of reconciling and balancing values in 21st-century America, equality has been overtaken by a narrow and impoverished concept of autonomy.3 Interestingly, while equality presupposes an individual seeking inclusion, autonomy seeks separateness and seclusion. Autonomy encompasses the concept of self-governance, and is characterized by self-sufficiency and independence, which are individual qualities seen as prerequisites for individual freedom of will and action.
Autonomy demands freedom from what are cast as unnecessary or excessively constraining rules and regulations – almost everything. The role of the state is to stay out of the way – to facilitate competitiveness in a meritocracy that rewards individual initiative and talent. When there is a distortion, such as arises from discrimination, the state should act to correct the problem and then retreat, reverting to its appropriate free market – non-intervention stance. The problem, however, is not always – not even predominantly – discrimination. The problem is distribution and achieving some form of substantive equality demands more from the state in terms of rules and regulations. It requires intervention, even reallocation of existing benefits and burdens. In order to have more equality (understood as greater good for greater numbers – a collective ideal), we must sacrifice some individual autonomy, which maintains and masks the privilege of the few.
Of course, Equality and Autonomy are in fact abstractions. Terms like autonomy or equality have no independent meaning or definition and can be understood in conflicting and incompatible ways. Their amorphous, overarching, and imprecise natures mean that both terms can be used by those holding disparate positions.4 My point is that neither equality nor autonomy can be understood in isolation from each other and, at least to the extent we are concerned with substantive equality, one will be emphasized at the expense of the other.
Of course, I recognize the symbolic appeal of the claims for both autonomy and equality and the desire to reconcile any potential conflict between them as aspirations. We hold both out, but our current understanding of equality is shaped through the lens of autonomy. Equality is reduced in its collective potential, shrunk to an individualized sense. Equality becomes the measure for opportunity and access – merely providing the chance for the individual to excel in the competition, an equal right to strive for self-sufficiency and independence. Equality is not the standard with which to assess contexts and conditions. It is not to be used as a levelling notion to even up the playing filed before the games begin. Some even argue that this sense of individualized, formal equality is as much as we can expect in our post-Ronald Regan United States. Equality is cast to follow scripts which presuppose both a meritocracy and a functioning free market in an ahistoric and context-free abstract articulation.
What are the questions we might ask about the current talents between equality and autonomy in our political rhetoric? They certainly would include:
What distortions result from viewing our equality aspirations through the lens of autonomy?
Whose interests are served by this current balance that privileges autonomy over an equality frame?
How does a preference for autonomy interfere with the development of a more substantive concept of equality?
Are there other values similarly sacrificed to autonomy?
What harms come to our society and its citizens when we privilege autonomy with its complementary components of individual independence and self-sufficiency?
In addition to exploring equality in the context of a balancing against other values, I think we must begin the hard work of constructing in and for the American context a viable and credible alternative concept of equality, moving beyond a formal to a more substantive form. The project here is to shift the frame from autonomy back onto a focus on equality. This framing process is not only descriptive, it is also normative; a way to give a different meaning to a series of issued and help redefine them in a more progressive manner. If the frame is equality rather than autonomy, then perhaps our first question would not be how we can define equality in terms that are consistent with the dictates of autonomy (the individual perspective). Instead, we might pursue how society must ensure autonomy as a basic guarantee, a foundation necessary for and consistent with our primary commitment to equality (an inclusive perspective).
If you had asked me even six months ago how to go about this project of reframing, I would have suggested looking to international human rights law and the constitutional processes of other industrialized democracies. Robust notions of substantive equality are set out in these documents and in cases interpreting them. For example, the Canadians realized it was simply not enough to assess equality from a formalistic perspective. The law must consider the societal context that defines groups and understand how individuals, identified and positioned in society through those groups, are advantaged or disadvantaged. Such an understanding would fulfill the Canadian Courts mandate that an interpretation of equality must be a “generous rather than a legalistic one, aimed at fulfilling the purposes of the guarantee [of substantive equality] and securing for individuals the full benefit of the Charter’s protections.”5
In other Western democracies there has been a general acceptance of the assertion that modernization and the expansion of equality mandate some sort of obligation on the part of government to guarantee fundamental social goods. This obligation has been codified and an international consensus has begun to emerge. International human rights documents describe the obligations of states to citizens as far reaching and diverse in subject matter. They include the Universal Declaration of Human Rights,6 the International Covenant on Civil and Political Rights,7 the International Covenant on Economic, Social and Cultural Rights,8 the American Convention on Human Rights,9 the African Charter on Human and Peoples’ Rights,10 and the European Convention for the Protection of Human Rights and Fundamental Freedoms.11 These documents, taken together, articulate a whole range of human rights as understood by the states that have signed onto them.
In the pantheon of international human rights, formal equality is certainly present. However, the commitment to equality does not stop there, nor does the state’s responsibility. While it is true that these documents have not been ratified by every country and their principles are not uniformly followed in those states that have adopted them, they do set out a full range of equal rights in aspirational terms. They stand witness to what are generally considered desirable objectives, widely accepted in many different societies, and increasingly used as the basis for articulating the need for specific laws.
I now believe arguments for a more expansive notion of equality for the United States based on international norms and principles are futile – at least for now. Recent developments in both political and academic circles at home show the ascendancy of a version of American exceptionalism regarding the superiority of our laws and Constitution. Labeling human right as “foreign fads” and proposing legislation that would lay the groundwork for impeachment of judges who referred to them rather than American constitutional law indicates just how parochial our judges and politicians are.
Such parochialism underscores the importance of excavating from the history of the United States and its legal principles the foundation for a more substantive and radical version of equality. In fact we can argue that a positive rights for formulation is neither and antithetical nor antagonistic to the American spirit. We can argue that the guarantee of inalienable rights encompasses the idea of state obligation to ensure by positive entitlements a level playing field in the name of equality. To do so I suggest a turn of our critical attention to issues of privilege in addition to those of oppression. You could say this is a way to make equality resonate within a post-identity analysis.
I want to ask not only now some are uniquely disadvantaged, made vulnerable by the structures and ideological predispositions of the system in which we operate, but also why and how some -- a few -- others are advantaged and privileged by that system. The question is not only who is harmed, but also who is benefited. We must explore the way that state structures and mechanisms privilege some people and how that privilege comes at the expense of others.
When we only studied the poor, the rich remain hidden, their advantages the relatively unexamined in a secure and private space where there is no need to justify or explain why they deserve to be there. We need to excavate privilege to lives. We certainly have abundant archives of privilege at hand. They are located in corporate boardrooms, tax codes, history books, literature, politics, and, of course, the law.
We need to ask questions such as why we debate a minimum wage, but fail to raise the idea of imposing a maximum wage. We must go beyond criticizing the prison system because of who it hurts and how it discriminates and consider who it privileges and how certain people are benefited. Not only do small, rural, predominantly politically conservative communities benefit, but also the Republican Party when prisoners are counted as members of those communities for purposes of assessing representation in the House of Representatives.
A focus on privilege in addition to the vulnerability might also help to change the nature of the inquiry. It moves us away from assessing the individual characteristics of designated groups within society to see if they are the subjects of animus. The focus would not be on the identity of the disadvantaged in the sense that has been developed over the past few decades under a discrimination paradigm – gender, race, sexuality, etc. Instead the task would not be to explore the intent and purposeful nature of actions by individual employees, educators, landlords, and so on. Individual intention is not the issue, nor is discrimination. You do not need ill will if everyone is operating with the same set of prejudicial assumptions and beliefs – sharing a culture of privilege. After all, we are all products of our cultures and the meta-narratives of that culture about what and who has value and what characteristics or actions gain entitlements affects us all.
State structures must become the focus and the inquiry will be into the ways in which societal resources are channelled in ways that privilege some and disadvantage others. It is the structures of society that need attention if we are to argue that the state has an obligation not to privilege any group of citizens over others – an affirmative obligation to structure equality, not just prevent discrimination.
Interestingly, the same-sex marriage debates reveal this approaches potential power. In some of those cases the plaintiffs focused on the privileges associated with marriage to develop inequality based argument that the state had an obligation to provide those privileges to all.
In 1999, the Supreme Court of Vermont looked into its own early American history and held that same sex couples were entitled to receive the legal benefits and protections that were previously only afforded to married couples of opposite sexes.12 The court focused on those benefits space afforded to married couples, and there were lots of them. Marriage was the institutions through which the state privileged and subsidized certain relationships. The court’s rationale in extending these benefits to same-sex couples derived, not from arguments of formal equality under the Equal Protection Clause of the U.S. Constitution, but from a more expansive and earlier notion of equality derived from the experience of colonial America.
The Vermont Constitution’s Common Benefits Clause predated the Fourteenth Amendment and was not based on a concept of discrimination. Nor was it focused only on protection for a specific category of persons. The Common Benefits Clause states, in part:
“That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community . . . .”13
The court distinguished federal jurisprudence from its interpretation of Vermont’s Common Benefits Clause, which it characterized as a matter of concern with ends rather than merely means. It noted that federal courts had been “broadly deferential to the legislative prerogative to define and advance governmental ends, while vigorously ensuring that the means chosen bear a just and reasonable relation to the governmental objective.”14
By contrast, underpinning the Common Benefits Clause was the notion that “the law uniformly afforded every Vermonter its benefit, protection, and security so that social and political pre-eminence would reflect differences of capacity, disposition, and virtue, rather than governmental favour and privilege.”15 This represented an end focus analysis. The majority continued, noting that the clause prohibits “not the denial of rights to the oppressed, but rather the conferral of advantages or emoluments upon the privileged.”16 Further, the Common Benefits Clause, “at its core ... expressed a vision of government that afforded every Vermonter its benefit and protection and provided no Vermonter particular advantage.” 17
The majority in Baker was not limiting the potential classes whose interests may be protected under the Common Benefits Clause to those groups identified by the U.S. Supreme Court.18 For, as the Court noted, “the plaintiffs are afforded the common benefits and protections of Article 7, not because they are part of a ‘suspect class,’ but because they are part of the Vermont community.”19This fact alone compelled the Court to “police a political process whose product frequently discriminates between citizens in respect to benefits and privileges.”20 This sounds like a fruitful inquiry if what we want is substantive equality, attention to the equality of outcome.
What does all this mean to those of us who seek a more just and equal society? For me personally, gender increasingly has become the door through which I enter the discussion about equality, not the focus of my inquiry. Equality must escape the boundaries that have been imposed upon it by a jurisprudence of identity and discrimination and the politics that has grown up around it. The promise of equality cannot be conditioned upon belonging to any identity category, nor can it be confined to only certain spaces and institutions, be they in the public or the private sphere. Equality must be a universal resource, a radical guarantee that is a benefit for all.
We must not define our aspiration for equality in the shadow of autonomy. Rather, we must begin to think of autonomy in conjunction with the meaningful and widespread attainment of equality. Some degree of equality (equalization) of resources is essential so that there is a floor below which no citizen falls. This is a prerequisite for the achievement of autonomy. Autonomy is only possible when one is in a position to be able to share in society’s benefits and burdens. And sharing in benefits and burdens can only occur when individuals have the basic resources that enable them to act in ways that are consistent with the tasks and expectations imposed upon them by the society in which they live.
The expectation that one should be able to achieve this form of autonomy – autonomy within and overarching commitment to equality -- should be every citizen’s birthright. Autonomy in this sense concedes that there is an inherent dependence on society on the part of all individuals and that society has an obligation to respond in such a way as to facilitate each citizen’s opportunity for equality. While some, having benefited by history and circumstances, are privileged by societies structures, others have been disadvantaged by that privileging and are deserving of some equivalent societal support. Doing this would give substantive content to equality and make a meaningful are nations historic commitment to a rule of law in which the same rules apply to us all, uninfluenced by our station or status in life.
1 I use this term to indicate a reciprocity or mutualism, although the term "containment" might also be appropriate. Containing family within its traditional form and function is certainly the goal of some political actors.
Not surprising, feminist celebration of equality is more muted than in the past. In fact, the concept’s usefulness has come under serious challenge from feminists on a number of fronts. One critique observes that, reasoning in terms of equality begs the question ‘equal to whom?’ and invariably points to male norms and standards as the measure to which women should aspire. Such an assimilationist approach to equality presumes that the roles, obligations and burdens of men and women in society are similar or equal in nature. Since this is not the case, equal treatment often results in further consolidation of existing unequal power relationships, effectively reinforcing the very gender system that feminists oppose.
In addition, it is sometimes contended that the existence of substantive inequalities is not a failure of equality, but simply a result of life choices freely made by autonomous men and women. If women ‘choose’ to devote more time to family and relationships, rather than investing their energies in the labour market, the resulting gender disparities do not reflect inequality. Such disparities are merely the neutral results of differing choices made by equally autonomous and free adults.
A related criticism is that formal equality, with its rhetoric of equivalence, rests on the assumption that there is a greater degree of similarity between the sexes than actually exists. Feminist legal discourse in adopting the concept of equality as inherent sameness will risk construing ‘Woman’ in terms that negate Her specificities and Her differences.
Further, this homogenization will erase differences among women, as well as those in relation to men. There may be important and relevant differences to explore. Certainly feminists have spent a great deal of time in recent years looking at differences across cultural, racial, sexual, and ethnic representations. These differences are often seen as modifying, even dividing, the category and allegiance of “woman.”
3 The importance of the idea of independence to the construction of an autonomous and equal individual may be traced to the fact that the very existence of the United States begins with a document entitled “The Declaration of Independence”. While it is a declaration of freedom for a fledging nation, it nonetheless sets forth as a “natural” principle that every individual is endowed with inalienable rights, such as the right to life, liberty, and the pursuit of happiness.
4 Cobb, supra note 5, at 33; Garvin, supra note 5, at 26.
.Id. In spite of such strong statements by the Canadian Supreme Court, supporting remedial or affirmative action and endorsing substantive equality, the Canadian Charter of Rights and Freedoms is still criticized as being structured in such a way as to make it difficult for some people to achieve equality even when rights are guaranteed in this way.
G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
.G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976.
9.O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978.
. (Banjul Charter on Human and People’s Rights) adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986.
.213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos 3, 5, 8, and 11 which entered into force on 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998 respectively.
12 Baker v. Vermont, 744 A.2d 864 (VT. Sup.Ct. 1999).
13 Vt. Const. Ch. I, Art. 7.
14 Baker at 871.
15 Id. at 876.
16 Id. at 874.
17 Id. at 875.
18 A handful of states, contain provisions granting affirmative rights, distinctly departing from the U.S. Constitution’s “negative” rights model. For instance, the preamble Pennsylvania’s Constitutional “it is our…duty to establish such original principles of government as will best promote the general happiness of the people of this State…and provide for future improvements, without partiality for, or prejudice against any particular class, sect, or denomination of men whatever….”
19 Baker, at 878 n. 10.
20 Lawrence Friedman & Charles H. Baron, Baker v. State and the Promise of New Judicial Federalism, 43 B.C.L. Rev. 125, at 152 (2001).