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3 Wis. Women's L.J. 59 (1987)
The Anti-Subordination Principle: Applications

handle is hein.journals/wiswo3 and id is 65 raw text is: THE ANTI-SUBORDINATION PRINCIPLE: APPLICATIONS Ruth Colker* I. Introduction Law's recognition of the subordination of blacks and womenl-through slavery, disenfranchisement, segregation and a general denial of full citizenship-provided the impetus for the development of modern equal protection doctrine. The principle underlying equal protec- tion doctrine, however, is not purely the principle of anti-subordination. -Instead, it is often the principle of anti-differentiation. The anti-differenti- * Associate Professor of Law, Tulane University. A.B. 1978, Harvard-Radcliffe Col- lege; J.D. 1981, Harvard Law School. I thank the Wisconsin Legal Institute, Martha Fineman, and Tulane Law School for the opportunity to present this paper at the Confer- ence on Feminist Legal Theory. I also thank the participants at the Conference who pro- vided me with excellent feedback, and my research assistant, Idella Wilson. Finally, I especially thank Mary Whisner, Mary Coombs and Vicki Schultz for providing feedback on an earlier draft of this article. The ideas expressed, of course, are my own. This article is the second part of a two-part article on the anti-subordination princi- ple. See also Colker, Anti-Subordination Above all: Sex, Race, and Equal Protection, 61 N.Y.U. L. Rev. 1003 (1986), part one. Part one contains a broad theoretical and doctrinal discussion of the principles of anti-subordination and anti-differentiation within equal pro- tection doctrine. It is forthcoming in the New York University Law Review. 1. By referring to the subordination of blacks and women throughout this article, I do not mean to suggest that these are the only groups that have faced subordination. How- ever, I do mean to suggest that they are the groups that law has most recognized as having faced subordination. For example, heightened judicial scrutiny does not exist for distinc- tions on the basis of handicap, age, wealth or sexual preference. See, e.g., Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (sustaining a mandatory retirement law for uniformed state police officers); James v. Valtierra, 402 U.S. 137 (1971) (rejecting an equal protection challenge to a California constitutional requirement restricting the devel- opment of low rent housing); Bowers v. Hardwick, - U.S. -, 106 S. Ct. 2841 (1986) (upholding Georgia sodomy statute as applied to homosexuals). The Supreme Court has wavered in the areas of alienage and illegitimacy but has generally failed to apply height- ened scrutiny to those categories. See, e.g., Foley v. Connelie, 435 U.S. 291 (1978) (hold- ing that New York could bar employment of aliens as state troopers); Labine v. Vincent, 401 U.S. 532 (1971) (upholding an intestate succession provision that subordinated the rights of acknowledged illegitimate children to those of other relatives of the parent). Although law did not recognize the invidiousness of blacks' and women's subordina- tion until recently, civil rights activists have long recognized this problem. Modern equal protection doctrine did not develop until judges and legislatures decided that the subordi- nation of blacks and women was wrong; black's and women's recognition that this subordi- nation was wrong was not sufficient. By referring to the subordination of blacks and of women together, I do not mean to suggest that their subordination or the recognition of their subordination has been identi- cal. Nevertheless, this article proceeds from an emphasis on the similarities of that subordi- nation rather than the differences.

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