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109 Nw. U. L. Rev. 1 (2014-2015)
(Un)Equal Protection: Why Gender Equality Depends on Discrimination

handle is hein.journals/illlr109 and id is 7 raw text is: Copyright 2015 by Keith Cunningham-Parmeter Printed in U.S.A. Vol. 109, No. t Articles (UN)EQUAL PROTECTION: WHY GENDER EQUALITY DEPENDS ON DISCRIMINATION Keith Cunningham-Parmeter ABSTRACT-Most accounts of the Supreme Court's equal protection jurisprudence describe the Court's firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court's rulings in this area have often rejected the principle of formal equality in favor of broader antisubordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular discriminatory policy that could dramatically promote gender equality in the decades to come. Fatherhood bonuses- laws that give families additional parental leave when fathers stay at home with their newborns-have the potential to drastically reorder gendered divisions of labor and expand women's workplace opportunities. Countries that have experimented with fatherhood bonuses have seen women with children spend more time in paid work, advance in their careers, and earn higher wages. Applying these international models to the American context, this Article explains why fatherhood bonuses would fit comfortably within our constitutional framework, which authorizes discriminatory policies when such policies support women's public participation. (Un)Equal Protection concludes by proposing a model for fatherhood bonuses in the United States that would encourage more men to perform care work, thereby advancing the goal of gender equality for both sexes. AUTHOR-Associate Professor of Law, Willamette University. J.D., Stanford University. I am grateful to Laura Appleman, Richard Birke, Naomi Cahn, Caroline Davidson, Nancy Dowd, Daniel Erler, Janet Gornick, Linda Haas, Ann McGinley, Nancy Levit, Rebecca Ray, Kurt Vogler-Ludwig, and Joan Williams for helpful conversations and input on this Article. I also thank Janna Giesbrecht-McKee, Tyler Millette, and Scott Sell for providing outstanding research assistance throughout this project.

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