by Martha A. Fineman
“It was an honor to present the Second Annual Ruth Bader Ginsberg Lecture. Justice Ginsburg has been a leader on the United States Supreme Court in the fledgling battle over whether and how to integrate international human rights concepts with traditional American Constitutional jurisprudence. The tasks of acceptance and integration have proven difficult to accomplish, with recent attempts generating a backlash that seemingly sprung from a deep well of belief about American superiority and exceptionalism.
Justice Ginsberg is not an isolationist in her approach to the U.S. Constitution, nor does she think America an exception when it comes to assessing the merits of comparative analysis. A few years ago, she wrote that an international comparative approach is “relevant to the task of interpreting constitutions and enforcing human rights.” She recognized that the United States loses an opportunity to expand upon its historic understanding of equality if we neglect the struggles of others in trying to address the disadvantaged status and bias shown against women, and other historically vulnerable societal groups. In this context, Justice Ginsberg was referring to affirmative action policies. In developing arguments in favor of affirmative action it has been productive when countries such as Australia, Canada, and South Africa consult the experiences and resolutions of their sister states, a practice in which they engage routinely. Noting the comparative lack of integration of other countries’ reasoning, as well as the relative silence in regard to international human rights generally, Justice Ginsberg wrote: “the same readiness to look beyond one’s own shores has not marked the decisions of the [United States Supreme Court].”
At the time she wrote this article in 1999, Justice Ginsburg found only five references to the Universal Declaration of Human Rights in United States Supreme Court opinions. Only two references were found in the opinions of Supreme Court majorities and the most recent citation at that time had appeared thirty-two years earlier in a dissenting opinion written by Justice Thurgood Marshall.
From a pro-comparative constitutional perspective, things are slightly better today. Some progress has been made toward recognizing the universal nature of and the possibility for shared wisdom in the struggle for equality. For example, Justice Kennedy referred to international human rights principles in his recent majority opinion in Lawrence v. Texas. Unfortunately, he was inappropriately ridiculed for doing so by Justice Scalia, who quoted an earlier opinion by Justice Thomas to the effect that international human rights norms are “foreign fads” and should be ignored by United States courts.
Despite such isolationist jurisprudential resistance it seems inevitable that our courts will eventually recognize, as have most other Western legal societies, that a comparative perspective can enrich an individual nation’s pursuit of equality. Other nations have grappled with the question of what it means to grant equality under the law. Looking at their struggles with equality demonstrates that the very word “equality” may be modified, and therefore understood, in different ways.
Formal equality is the circumstance in which universal laws are applied equally to everyone. Formal equality does not, however, guarantee equal outcomes. In fact, given existing inequalities in our society, unequal results are inevitable when formal equality is applied. Formal equality is procedural, rather than remedial, in nature. This is not to say that it is neither an important nor useful concept. In many cases it is exactly appropriate to resort to formal equality. Formal equality may prevent laws from drawing distinctions on the basis of personal characteristics such as race or sex. For example, in Brown v. Board of Education, the Supreme Court ruled that segregated education was an equal rights violation. The one person – one vote rule is another example of a situation where formal equality is the appropriate measure, as is that of equal pay for equal work or other situations in which the objective is to treat people in similar circumstances the same.
Formal equality should not be the measure in all situations, however. Formal equality ignores the fact that sameness of treatment is not appropriate when there are gross disparities in positions, when people are located in widely different circumstances. In such cases of unequal conditions, to apply formal equality principles is to aggravate the existing disparities.
There are many situations in which laws that are neutral on their face have an unequal impact. Those groups that have traditionally suffered deprivation and discrimination are oftentimes further disadvantaged by the strict application of rules of formal equality. Affirmative action programs, and similar remedial measures, draw distinctions between groups in order to create a more level playing field. Yet, in California and other states, such programs have been attacked with a vengeance under the rhetoric or principles of formal equality.
Of course, there are other ways of thinking about equality. The term “substantive equality” refers to an approach in which the equality focus is on the objective or goal to be attained, not on measuring the nature of the treatment. Substantive equality requires that we take into account and seek to address the effects of economic, social, and cultural discrimination and oppression. In order to achieve the goals of substantive equality, it is necessary to assess our laws and regulations in the context of historic discrimination keeping in mind the goal of alleviating past discrimination. Efforts toward achieving substantive equality undertaken by other industrialized democracies are instructive on this point.
In 1982, the Canadian Charter of Rights and Freedoms (the Charter) was added to a group of other documents that form the Canadian Constitution. During the creation of the Charter, there was ongoing discussion about the concept of formal equality and its limitations. As a result of that dialogue, Canada became the first country to include explicit concessions through the notion of substantive equality in its constitution.
Section 15.1 of the Charter begins with the basic equality statement providing that, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The Supreme Court of Canada later held these basic categories are representative, not exclusive or exhaustive, and on that basis added same-sex partners to those deserving of protection.
Section 15.2 of the Charter expressly permits programs of affirmative action that have the goal of addressing systemic discrimination against disadvantaged groups. This section reads, “Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Section 27 clarifies that “[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” And Section 28 reiterates that “[n]otwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”
The first case that arose under Section 15 of the Charter, Andrews v. The Law Society of British Columbia, was heard in 1989. The court held that adherence to Section 15’s concept of equality requires that the law promote the equality of socially disadvantage groups. The Supreme Court of Canada acknowledged the value of formal equalities, but decided Section 15 guaranteed more than just formal equality. The Court noted that “every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality.” This statement is an explicit recognition of the concepts of affirmative action and substantive equality. Significantly in this regard, in Andrews, the Court also reaffirmed its commitment in Charter rights cases to pursue a contextual interpretation.
As the Canadians have realized, it simply is 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 must be “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.”
Canadian legal scholar Joel Bakan articulates equality goals beyond those of substantive equality using the concept of social equality. Bakan defines social equality in terms of political and social power. Social equality requires a degree of economic and social equivalency. He argues that Section 15 of the Charter has not had a substantial influence on social equality in Canada and that it is not likely to have such an influence because social equality is a very complex phenomenon. Most of the oppression that people suffer, he asserts, is due to the “oppressive and exploitive social relations that typify civil society.” The Charter does not apply to private actions. He is also critical because the Charter imposes no positive obligation on the government. So while the government may not exact laws that result in unequal harm, and it may promote remedial or affirmative action if it chooses, it is not required to positively act in response to unequal harms that arise from patterns of inequality in society at-large. Thus, there is no affirmative duty imposed on the government.
Bakan describes the conditions to which a more socially equal society would aspire. “Equality entails elimination of major disparities in people’s material resources, well-being, opportunities, and political and social power, and an absence of economic, social, and cultural oppression and exploitation.” He concedes that “[p]erfect social equality may be impossible,” but he argues that “the aspiration to rid society of oppression and exploitative disparities, based on unequal social relations . . . is realistic and worth fighting for.”