'A common fate of discrimination': race-gender analogies in legal and historical perspective.

• Author: Mayeri, Serena

In her classic work Ain't I a Woman, African-American feminist critic bell hooks excoriated white feminists for their "constant comparison[s] of the plight of `women' and `blacks,'"(1) charging that such analogies "support the exclusion of black women"(2) and represent the linguistic expression of a "sexist-racist attitude"(3) endemic to the women's liberation movement. Hooks, writing in the early 1980s, perceived analogies between racial and sexual oppression--at least as articulated by white women who "used black people as metaphors"(4)--as a quintessentially opportunistic, parasitic, and marginalizing practice.

Two decades earlier, when civil fights attorney Pauli Murray, already a veteran of battles against racial and sexual exclusion, was searching for a means of persuading skeptics that the eradication of "Jane Crow" deserved moral commitment and legal mobilization equivalent to the fight against "Jim Crow," she had emphasized the "strikingly similar positions in American society" of "women and Negroes."(5) Invoking the "parallel and interrelated" histories of women's fights and civil fights movements, Murray articulated an analogy that superficially resembled the very comparison hooks would later condemn.

Powerful political and legal imperatives shaped Murray's decision to invoke an analogy between race and sex in the early 1960s. In so doing, she deliberately and self-consciously adopted a long tradition within feminist advocacy traceable to the genesis of the antebellum woman's fights struggle in the crucible of antislavery activism. She also acted on the strong legal impulse to justify the application of old principles to new circumstances through analogical reasoning. The analogical arguments advanced by Murray and others would have a profound impact on the development of antidiscrimination law in both its legislative and its constitutional incarnations, an impact that continues to be felt today.

As the juxtaposition of hooks's and Murray's words suggests, the political connotations of analogies between race and sex are highly context-dependent and historically variable. As this Note will show, changing historical conditions render the legal ramifications of analogical arguments equally protean, with momentous consequences for both feminism and antiracism. Following a conceptual introduction to analogical argumentation and civil rights advocacy in Part I, Part II investigates the particular historical context of the 1960s in which race-sex analogies emerged as a central component of modern feminist legal thought. The transformation of the social meaning and legal consequences of analogical arguments in 1970s constitutional jurisprudence is the subject of Part III. In order to suggest the continuing relevance of this history to today's civil rights and feminist agendas, Part IV discusses the trajectory of race-gender analogies in the recent debate over the Violence Against Women Act's civil rights remedy. Finally, Part V provides some concluding remarks about the historical dynamics of analogical arguments.

1. ANALOGICAL ARGUMENTS AND CIVIL RIGHTS ADVOCACY

   Analogical arguments, common in legal reasoning generally,(6) are a staple of civil rights advocacy, where established claims of inequality and injury serve as a template upon which individuals and groups assert new claims and demand new remedies.(7) Analogies have both political and legal currency: They can inspire empathy and understanding of harms previously unrecognized, and they may be desirable, if not necessary, in an adjudicative system based upon fidelity to precedent. Analogical arguments not only dominate equal protection jurisprudence, but also play a crucial role in the construction and legitimation of legislative remedies for discrimination and violence against subordinated groups. In American antidiscrimination law, race--in particular, the legal response to the African-American experience of racial subordination--is both the source of Americans' political imagination about the nature and scope of equal rights protection, and the legal baseline against which new rights claims are measured.(8) This Part first examines the structure of analogical arguments in the civil rights context and then surveys recent critiques of parallel reasoning about rights. The final Section suggests that a complete understanding of the dynamics of analogical argumentation requires a historical inquiry into the particular contexts and changing conditions that shape the social meanings and legal consequences of these parallels.

   1. Forms of Analogical Argument in the Civil Rights Context

      Analogical arguments in the civil rights context assume a variety of forms. Advocates often employ analogies simply to evoke the moral opprobrium reserved for classic civil rights harms, demanding a normative commitment to the eradication of a previously unrecognized, or underrecognized, category of injuries. This first type of claim may be simply that sexism, like racism, is a moral wrong worthy of condemnation and corrective action. This persuasive technique is distinguishable from a second type of analogy, which identifies parallel consequences wrought by various types of discrimination. For instance, an advocate might argue that discrimination based on sex, like discrimination based on race, detrimentally affects the economic well-being of individuals and groups by unjustly constraining their employment opportunities. A third type of analogy consists of specific claims about the particular dynamics of different types of oppression. At the level of specific employment practices, the manner in which discrimination is effectuated may vary considerably according to whether the victim is a clerical worker or a factory operative, black or Asian, white or Latino/a, male or female, gender-conventional or not, and so forth. Nevertheless, an analogical argument might posit that stereotypes and prejudices are the common root of both sex- and race-based workplace discrimination. Such a parallel often leads to a fourth type of analogy, whereby advocates use existing legal solutions as models for combating newly recognized forms of inequality. For instance, advocates have argued that violence based upon gender or sexual orientation should be covered by hate crimes legislation similar or identical to laws that protect individuals from racially motivated assaults.(9)

      Analogical reasoning may go beyond direct parallels between various forms of inequality to engage in more nuanced comparisons that recognize differences as well as similarities and attempt to determine their moral and legal significance.(10) For instance, an analogical backdrop might facilitate rather than hinder a determination that while sexual orientation may not be "immutable" like race, lesbians and gay men nevertheless suffer discrimination worthy of redress. This insight is possible, though, only if gay rights advocates compare the damaging nature of racial and sexual oppression rather than the characteristics of targeted groups.(11) In other words, they might argue that although sexual minorities and racial minorities have different group traits and histories, their subordination is similar in its grave material and dignitary consequences. Further, a comparative framework may highlight the need for different remedies in response to different dynamics of oppression or for synergistic solutions to overlapping inequalities. Often, however, analogical arguments emphasize similarities rather than differences and intersections, provoking many of the critiques described in the next Section.

   2. Critiques of Analogical Reasoning About Civil Rights

      Notwithstanding the considerable rhetorical and legal power of analogies as persuasive tools, analogical reasoning gives rise to several analytic and strategic pitfalls in the civil rights context. First, analogies may hamper the normative recognition and constrain the substantive definition of the new harm that advocates hope to establish as worthy of political attention and legal remedy. As Catharine MacKinnon and others have argued, rigid adherence to

      analogical reasoning may preclude the recognition of inequality and suffering that does not precisely resemble practices already defined as civil rights injuries.(12) Analogies make a particularly procrustean bed if existing law has incorporated a cramped or impoverished conception of the scope of the original right.(13)

      Second, a number of theorists have contended that analogical arguments detrimentally affect established civil rights claims. Trina Grillo and Stephanie Wildman argue that even well-intentioned comparisons between racism and sexism perpetuate white supremacy by decentering the experiences of people of color, unfairly appropriating their suffering in a manner that distorts its unique nature and magnitude and obscures the racial privilege enjoyed by white women.(14) To the extent that new claims garner weaker political support than older claims, advocates have often worded that association of the new with the old may undermine the legitimacy of the established claims.(15) In her essay on the use of "like race" arguments in the gay rights context, Janet Halley notes that analogies may also have detrimental doctrinal consequences for an existing body of law, hardening and reifying categories that were previously soft and amorphous.(16) Furthermore, analogical arguments may inadvertently lead judges to interpret equality mandates narrowly, in ways that constrict existing remedies.(17)

      Critics have also emphasized how analogies, by stressing the parallel, rather than the intersectional, synthetic, and overlapping, aspects of various forms of inequality, can obscure the experiences of individuals and groups who suffer discrimination along multiple axes. Kimberle Crenshaw,(18) Angela Harris,(19) Regina Austin,(20) and other intersectionality theorists have exposed the tendency of antiracist and feminist...