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Sexual Difference, Feminism, and the Law

Published online by Cambridge University Press:  27 December 2018

Susan Moller Okin
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Type
Review Essay
Information
Law & Social Inquiry , Volume 16 , Issue 3 , Summer 1991 , pp. 553 - 573
Copyright
Copyright © American Bar Foundation, 1991 

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References

1 See, e.g., Henderson, Lynn, “Legality and Empathy,” 85 Mich. L Rev. 1574;Resnick, Judith, “On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges,” 61 S. CaL L. Rev., 1877 (1988);Sherry, Suzanna, “The Gender of Judges,” 4 Law & Inequality 159 (1986);West, Robin, “The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory,” 3 Wis.Women'sL. J. 81 (1986) and ”Jurisprudence and Gender,” 55 U. Chi. L. Rev. 1 (1988).Google Scholar

2 This second aspect of feminist legal theory is best represented by the work of Martha Minow—most recently and completely Making All the Difference : Inclusion, Exclusion, and American Law (Ithaca, N.Y.: Cornell University Press, 1990).Google Scholar

3 Fairly recent examples include Fineman, Martha L., “Implementing Equality: Ideology, Contradiction, and Social Change,” 1983 Wis. L Rev. 789;Finley, Lucinda M., “Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate,” 86 Colum. L. Rev. 1118 (1986);Freedman, Ann, “Sex Equality, Sex Differences, and the Supreme Court,” 92 Yale L.J. 913 (1983);Hill Kay, Herma, “Models of Equality,” 1985 U. Ill. L. Rev., 39 (1985);id.,” Equality and Difference: The Case of Pregnancy,” 1 Berkeley Women's L.J. (1985); Krieger, Linda J. & Cooney, Patricia N., “The Miller-Wohl Controversy: Equal Treatment, Positive Action and the Meaning of Women's Equality,” 13 Golden Gate U.L. Rev. 495 (1983);Law, Sylvia A., “Rethinking Sex and the Constitution,” 132 U. Pa. L. Rev. 955;Littleton, Christine A., “Equality and Feminist Legal Theory,” 48 U. Pitt. L. Rev. 1043 (1987);id., ”Reconstructing Sexual Equality,” 75 Cal. L. Rev. 1279 (1987);Rhode, Deborah L., “Equal Rights in Retrospect,” 1 Law & Inequality 1 (1983);Scales, Ann C., “Towards a Feminist Jurisprudence,” 56 Ind. L. J. 375 (1981);Segal, Phyllis N., “Sexual Equality, the Equal Protection Clause, and the ERA” 33 Buffalo L. Rev. 85 (1984);Williams, Wendy W., “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” 7 Women's Rights L. Rep. 175 (1982);id., ”Equality's Riddle: Pregnancy and the Equal Treatment Special Treatment Debate,” 13 Rev. L. & soc. Change 325 (198485). Catharine MacKinnon's work is difficult to categorize, although most of it falls under this or the first category outlined above. See Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987) (“MacKinnon, Feminism Unmodified”); and id., Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1989).Google Scholar

4 See, e.g., Sylvia Ann Hewlett, A Lesser Life: The Myth of Women's Liberation in America (New York: William Morrow, 1986); Mary Ann Mason, The Equality Trap (New York: Simon & Schuster, 1988).Google Scholar

5 See MacKinnon, Feminism Unmodified, esp. ch. 2. She says: “I will…concede that there are many differences between women and men, I mean, can you imagine elevating one half of a population and denigrating the other half and producing a population in which everyone is the same?” This hardly biologically determinist assertion is in line with the rest of what she says about differences between men and women—-that they are differences within sexist society. Kaminer quotes MacKinnon's assertion: “Giving a man pornography is like saying ‘Kill’ to a trained attack dog,” and interprets it to mean: “all men are dogs on short leashes” (at 200). But in the context of a passage that makes it abundantly clear that she is no biological determinist, MacKinnon says: “Because I think [the differential between women and men] is political [not biological or evolutionary], I think its politics construct the deep structure of society. Men who do not rape women have nothing wrong with their hormones. Men who are made sick by pornography and do not eroticize their revulsion are not underevolved” (Feminism Unmodified 41).Google Scholar

6 See Feminism Unmodified 38–42.Google Scholar

7 Both quotations are from id. at 40.Google Scholar

8 Kaminer does not discuss Chodorow or her work directly, but she does discuss a “pop” version of it, and wrongly interprets it as biologically determinist. She criticizes it for being “a perfectly circular theory…rest[ing] on the initial consignment of mothers to primary caretaking roles, which may not be natural at all” (at 209). In a sense, the circularity (the cyclical reproduction of mothering) is precisely the point of the theory. But because feminine characteristics are not biologically determined but are “reproduced” in girls the way they are, Chodorow thinks that breaking the circle—by not consigning mothers to primary caretaking roles—is not only desirable but possible.Google Scholar

9 107 S. Ct. 683 (1987).Google Scholar

10 As cited in Calfed v. Guerra, at 698 (emphasis added).Google Scholar

11 In Justice, Gender, and the Family (New York: Basic Books, 1989), I argued in favor of separating out the issue of parental leave, and treating pregnancy and childbirth as “disabling conditions” for leave purposes,” in part because their disabling effects vary from one woman to another.” I added: “It seems unfair to mandate, say, eight or more weeks of leave for a condition that disables many women for less time and some for much longer, while not mandating leaves for illnesses or other disabling conditions. Surely a society as rich as ours can afford to do both” (at 176). I continue to think that pregnancy leave should be related to actual time disabled—and separated completely from parental leave, which should be available to mothers and fathers equally. But, as the following argument will show, I have had second thoughts about the unfairness of the “pregnancy leave only” situation in a society which (however rich) fails to mandate general disability leave.Google Scholar

12 Lucinda Finley, Herma Hill Kay, Sylvia Law, and Christine Littleton, in their writings on the issue, all suggest elements of the Court's solution. See relevant articles cited in note 3 supra.Google Scholar

13 With NOW and Rhode (see below), I think that the soundest and fairest public policy would be mandatory comprehensive disability leave for both sexes. The Supreme Court, however, was not in a position to ensure this outcome. If it had taken the unusual step of requiring the state of California to extend the statute, the net result might instead have been its repeal.Google Scholar

14 Calfed v. Guerra, at 694.Google Scholar

15 Geduldig v. Aiello, 417 U.S. 484 (1974); General Electric Co. v. Gilbert, 429 U.S. 125 (1976).Google Scholar

16 As I have argued above, they are not biological determinists; they do not want to preserve or protect existing sex roles; and they do not have an essentialist view of men and women as different but are concerned with differences between the sexes that exist in current society.Google Scholar

17 She even suggests that if Falwell were to favor anything, that would be sufficient reason, without further consideration of the issue, to be against it (at 214–15).Google Scholar

18 She writes (at 269): “Although united against a common target, coalition members work from very different premises. Unlike feminists, who view pornography as speech— uniquely powerful speech—many conservatives view it as smut, without expressive content. And unlike antipornography feminists, who see its suppression as part of a broader assault on traditional gender roles, many conservatives view their efforts as helping to preserve those roles.”.Google Scholar

19 An addendum specified that the ordinance also applied where men, children, or transsexuals were substituted for women.Google Scholar

20 Miller v. California, 413 US. 15 (1973). The decision specifies that works that depict sexual conduct in a “patently offensive way” that the average person applying contemporary community standards would find appealed to the “prurient instincts” and that “lack serious literary, artistic, political, or scientific value” are outside the protection of the First Amendment. The major problems with these standards, Rhode says (at 265), are that they are so subjective and they could be held to include harmless erotica while excluding some sexually violent material.Google Scholar

21 She notes (at 271): “According to public—opinion surveys in the mid-1980s, some two-thirds of Americans favored prohibitions on sexual violence in magazines and movies.”.Google Scholar