Reconstructing the race-sex analogy.

• Author: Mayeri, Serena

ABSTRACT

In the standard account, American sex equality law rests on a partial and imperfect analogy to race, developed in the 1970s by feminists intent on establishing formal equality between men and women, and embraced, albeit selectively and uneasily, by lawmakers and judges. But this account, although containing important elements of truth, obscures the creative ways that advocates turned the tables, arguing that principles developed in sex equality jurisprudence could expand the availability of remedies for racial injustice. This Article explores one example of this phenomenon: efforts, led by Ruth Bader Ginsburg, to use the emerging constitutional distinction between detrimental and beneficial sex classifications as a precedent supporting and justifying the constitutionality of race-based affirmative action. Feminists faced a series of analogical crises in the mid-1970s, including the collision of "benign" sex classifications and race-based affirmative action in the Court, and the Justices' failure to see pregnancy discrimination as an equal protection violation. In response, feminists reformulated the race-sex analogy, attentive to differences as well as similarities between race and sex inequality. They also sought to apply their hard won gains in sex equality cases to the race context, arguing that the Court's openness to "genuine affirmative action "for women should extend to racial minorities. The narrow failure of this strategy to win a Court majority had lasting consequences, including a problematic divergence between race and sex equality doctrines and the submergence of gender, work, and family issues in the affirmative action debate. The reconstructed analogy she developed as an advocate, however, remains alive in Justice Ginsburg's jurisprudence, and recovering its history suggests the need for a reassessment of both legal feminist advocacy and constitutional equality law.

TABLE OF CONTENTS INTRODUCTION I. ANALOGICAL CRISIS A. The Appeal of Analogical Reasoning: The Early Sex Equality Cases B. "A Disgrace from Every Point of View": The Kahn/DeFunis Conundrum C. "Exceedingly Difficult To Talk About Equality of Treatment": Pregnancy and the Limitations of Reasoning from Race II. REFRAMING THE RACE-SEX ANALOGY A. "The Home-Work Gap Must Be Confronted": Affirmative Action and Family Roles B. "I Could Not Have Done Better": The Promise of Reverse Analogy C. "A Lengthy and Tragic History that Gender-based Classifications Do Not Share": Reformulation Rejected III. THE REVERSE ANALOGY'S AFTERLIFE A. Divergence: An "Anomalous" Result B. Submergence: Gender in the Affirmative Action Debate C. Convergence: Justice Ginsburg's Jurisprudence CONCLUSION: RETHINKING THE LEGACY OF LEGAL FEMINISM INTRODUCTION

In the context of American law, we are accustomed to thinking about race-sex analogies as a mostly one-way street. Indeed, in the postwar United States, it was the African American civil rights movement that laid the groundwork and developed the legal templates for the diverse array of social movements that followed. (1) Beginning in the early 1960s, feminists increasingly began to revive the analogy to race, once a staple of nineteenth century women's rights agitation. By the early 1970s they had achieved considerable success in what once seemed an improbable quest. (2) As the 1970s wore on, legal feminism confronted the analogy's limits--both descriptive and political--which rendered race jurisprudence less useful than it seemed at first. (3) But that narrative of declension, as important as it is, is only part of the story. (4) In response to changing political and legal conditions, feminists and their allies have also used concepts developed in sex equality doctrine as precedents to justify a more expansive race jurisprudence. They laid the groundwork for this reconstructed analogy in the mid-1970s, when the limits of the race-sex analogy as previously articulated became clear. (5) This reciprocity was complex and multifaceted, spanning an array of doctrines and time frames. This Article recovers one strand of that reciprocal relationship, examining how advocates and their judicial allies argued that sex equality jurisprudence could and should be a template for the constitutional treatment of race-based affirmative action.

In the early 1970s, feminist constitutional litigators saw their primary task as convincing the Court that sex-based legal distinctions were, by and large, the product of an outdated and invidious ideology that consigned women to the separate and often inferior sphere of home, family, and lifelong economic dependence. The analogy to race helped feminists persuade judges and other legal decision makers that discrimination based on sex was worthy of similar attention and eradication, and they came within one vote of a Court majority in the 1973 case Frontiero v. Richardson. (6) But by the middle of the decade, as Part I of this Article recounts, the race-sex analogy had become a double-edged sword for feminists and their allies. The collision of "benign" sex classifications and race-based affirmative action in the Supreme Court and the Court's failure to treat pregnancy discrimination as a constitutional violation drove home the analogy's substantive and strategic limitations. (7)

Feminists did not stand idly by as their race-sex analogy foundered. Instead, as Part II demonstrates, they reformulated the analogy to reflect what they saw as important differences between race and sex inequality and to harness the emerging potential of sex equality jurisprudence to provide a template for addressing the increasingly thorny issue of race-based affirmative action. Their ability to do this depended upon their quiet success in persuading the Court to distinguish between so-called "benign" sex-based classifications that perpetuated women's dependent and subordinate status and those designed to promote economic opportunity and independence, a synthesis that occurred in the relatively obscure and short per curiam opinion in Califano v. Webster. (8) Of course, the distinction between benign and invidious discrimination had deep roots in the advocacy, scholarship, and jurisprudence combating racial segregation and discrimination. But ironically, it was in the context of sex equality jurisprudence, in which feminist lawyers have been accused of taking a rigid formal equality approach, that a principled distinction between invidious classifications and "genuine affirmative action" won the endorsement of a majority of Justices. The development of this distinction frustrated some who doubted judges' ability to reliably separate the wheat from the chaff, but it inspired others, most prominently Ruth Bader Ginsburg, to explore the applicability of sex equality precedents to race jurisprudence.

This reconstructed, or "reverse," analogy had a number of advantages for advocates. Most obviously, it portended a lower level of scrutiny for classifications designed to enhance opportunities for historically disadvantaged groups. But as Ginsburg and others recognized, the reverse analogy's potential extended beyond the mechanical application of a less stringent standard of review. More importantly, the standard articulated in Webster invoked a substantive conception of equal protection that recognized societal discrimination as a sufficient justification for affirmative action. Further, it shifted the focus of the inquiry away from harm to third parties, such as men and whites, and toward avoiding the stigmatization of the disadvantaged groups affirmative action was designed to help. The approach the Justices had accepted with little fanfare in Webster seemed an ideal template for deciding the highly publicized, bitterly controversial Bakke case. (9)

It was not to be. Like the race-sex parallel advanced in Frontiero, the reformulated sex-race analogy came within one vote of adoption by the Justices, and once again Justice Powell cast the deciding vote. (10) This time, his opinion would come to be seen as speaking for the Court. The import of the Bakke decision, and Powell's opinion in particular, is of course well-known, but its significance for the relationship between sex and race jurisprudence is underappreciated. Powell's opinion in Bakke not only remade affirmative action doctrine by elevating diversity as a government interest and subjecting race-based university admissions policies to strict scrutiny, but it also short-circuited attempts to use sex equality doctrine as conceptual and constitutional support for race-based remedial programs. Part II.C details the debate inside the Court over the proper role of sex equality precedents in the evaluation of race-based affirmative action cases. Although a plurality of Justices, led by Justice Brennan, deployed the sex equality precedents to advance principles developed over many years in the race context, Justice Powell's opinion explicitly rejected the sex-race parallel.

Part III explores the post-Bakke history of the reconstructed sex-race analogy in affirmative action law and discourse. The disjuncture between the constitutional doctrines of race and sex equality that emerged in the late 1970s endures to this day. Not only did the two doctrines diverge, but the law and discourse of affirmative action neglects or submerges many of the concerns that have motivated sex equality advocacy, including work-family conflict and the accommodation of women's reproductive difference. Even so, the "reverse analogy" championed by legal feminists and affirmative action proponents in the 1970s did not disappear. The final section of Part III traces the theme of doctrinal convergence through Justice Ginsburg's opinions in recent equal protection cases.

Finally, the conclusion proposes that recovering this history may help us rethink the legacy of legal feminism. Legal feminist strategy and judicial decisions in the sex equality area have been subject to...