Equality: Still Illusive After All These Years

by Martha A. Fineman

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“The title of this chapter owes a debt to Paul Simon, although his phrase is “still crazy after all these years.”1 He uses it to describe the feelings that are generated when he meets an “old lover” on the street, who seems glad to see him. After a few beers together, they go their separate ways, and he reflects on the fact that he is not the kind who tends to socialize, but seems to “lean on old familiar ways,” “longing [his] life away,” “still crazy after all these years.” I think of equality as that old lover, as illusive as ever, meeting and mixing, then going its separate way, leaving the feminist leaning and longing for it – still crazy after all these years.

In this chapter, I will propose that one way to render equality less illusive is to move beyond gender and build a more comprehensive framework on the concept of universal human vulnerability. I propose a new theoretical investigation, one that focuses on privilege as well as discrimination and reflects on the benefits allocated through the organization of society and its institutional structures. Such an approach could move us closer to securing substantive equality and social rights in the United States.

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 feminism. Indeed, the concept of equality has been central to feminist legal thought and politics, as we have pointed out the shortfalls in the originally exclusionary form of our republican government. It is sometimes suggested that the history of equality and the history of contemporary feminism are largely 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 throughout the twentieth century and into this new one have relied on the concept of equality in confronting the disadvantages and discrimination that were inherent in the founding of the nation and the development of its laws.2 In fact, no other concept has been more productive– at least as measured in terms of page counts and numbers of footnotes generated – than equality.

Hence we gather together in this collection distinguished feminist scholars, poised to consider yet again equality – this time in the context of equal citizenship. Equal, in this particular reconsideration, modifies the status of citizenship, raising some interesting questions, which this book explores.

Many of the essays in this volume position equality as the measure for full citizenship. One purpose for convening the conference that led to this collection was stated to be to “take stock of progress made toward securing such citizenship and impediments to this goal” (the goal of securing equal citizenship).3 A premise of this volume is that “equal citizenship of women is a common political value – gender equality or the equal rights and responsibilities of men and women – features in the constitutional, statutory and common law of many countries and in international law and human rights instruments.” In fact, the equal legal status of women is often held out as one of the defining features of the so-called modern state. I am tempted to ask whether adding citizenship in this way conceptually detracts from or constrains a discussion of equality. Why should we confine our consideration of equality to citizenship? Isn’t equality a much more expansive concept, one that slips beyond the boundaries of the nation-state and into the realm of universal human rights?

On the other hand, isn’t the modification of citizenship by equal redundant? Citizenship connotes belonging – it is an entitlement and a privilege conferred by the state through inclusion in the category, a relationship or covenant between the state and certain individuals who are labelled citizens. If this is so, doesn’t the very label “citizen” at least confer political and civil equality upon those to whom it applies?

Equality is assumed in the designation of citizenship, at least in a modern nation- state.4 Citizenship is a generalized category, containing uniform bundles of entitlements, claims, obligations, and allegiances equally applicable to those who occupy its terrain.

I am further intrigued by the list of different categories of citizenship that this volume explores. Linda C. McClain and Joanna L. Grossman indicate, in their introduction to this book, that citizenship can have multiple dimensions – there are constitutional, political, social, cultural, sexual and reproductive, and global components of citizenship.5 I assume that all these facets of citizenship are also ideally conceived of as falling under the existing equality regime.6 On the other hand, they suggest that the commitment to a regime of equality has not triumphed absolutely. We were also told that “despite great steps, there remains resistance and a wavering commitment to and cultural ambivalence about gender equality.” This raises another question – on whose part is there resistance? The phrasing suggests that there may be some dispute as to state responsibility in the face of cultural resistance to equality. Is this resistance only found in areas such as cultural citizenship, or do women have to worry about losing the vote or being exiled from juries? What are, for example, the sources of resistance in the United States to social citizenship?

Many of the essays in this collection address these questions and focus us on the modern problems with equality. Surely the commitment to equality can be inhibited by public initiatives, institutional culture, and private conduct. There are also, as the conference literature noted, “perennial debates about differences.” Those differences are certainly the ones perceived between women and men but transcend that basic gender category to consider whether equality in different spaces is appropriate. In particular, are the public and political aspects of life currently considered more appropriately equalized than the family? Some argue that equality is unequal within the private sphere.

It seems clear that in spite of over four decades of using the ideal of equality to confront gender-skewed distributions of power, we still find a politics of subordination and domination that seems embedded in society and its ideological and structural institutions, including law. Why is it that the realization of gender equality

– even after all these years of theorizing, arguing, and strategizing – remains strangely illusive? Part of the answer is found in the fact that in our ongoing struggle for gender equality we have been constrained by philosophical and jurisprudential concepts shaped and handed down to us by our forefathers.”

Fineman, Martha Albertson, Equality: Still Illusive after All These Years. SOCIAL CITIZENSHIP AND GENDER, Joanna Grossman & Linda McClain, eds., Cambridge University Press, 2009; Emory Public Law Research Paper No. 09-62. Available at SSRN: https://ssrn.com/abstract=1424966


Read more here: https://ssrn.com/abstract=1424966

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