The Equality Crisis: Some Reflections on Culture, Courts, and Feminism
![handle is hein.journals/worts14 and id is 161 raw text is: The Equality Crisis: Some Reflections
On Culture, Courts, and Feminism
WENDY W. WILLIAMS*
INTRODUCTION
To say that courts are not and never have
been the source of radical social change is an un-
derstatement. They reflect, by and large, main-
stream views, mostly after those views are well es-
tablished, although very occasionally (as in Brown
v. Board of Education, the great school desegrega-
tion case) the Court moves temporarily out ahead
of public opinion. What women can get from the
courts-what we have gotten in the past decade-
is a qualified guarantee of equal treatment. We
can now expect, for the most part, that courts will
rule that the privileges the law explicitly bestows
on men must also be made available to women.1
Because courts, as institutions of circum-
scribed authority, can only review in limited and
specific ways the laws enacted by elected repre-
sentatives, their role in promoting gender equality
is pretty much confined to telling legislators what
they cannot do, or extending the benefit of what
they have done, to women. In an important
sense, then, courts will do no more than measure
women's claim to equality against legal benefits
and burdens that are an expression of white male
middle-class interests and values.2 This means, to
rephrase the point, that women's equality as de-
livered by the courts can only be an integration
into a pre-existing, predominantly male world.
To the extent that women share those predomi-
nant values or aspire to share that world on its
own terms, resort to the courts has, since the
early 1970s, been the most efficient, accessible,
and reliable mode of redress. But to the extent
that the law of the public world must be recon-
structed to reflect the needs and values of both
sexes, change must be sought from legislatures
rather than the courts. And women, whose sepa-
rate experience has not been adequately registered
in the political process, are the ones who must
seek the change.
Nonetheless, I am going to talk about courts
because what they do-what the Supreme Court
does-is extremely important, for a number of
reasons. (1) The way courts define equality,
*Assistant Professor of Law, Georgetown University Law
Center: B.A. 1966, University of California, Berkeley; J.D.
1970, Boalt Hall, University of California, Berkeley. This
article began as a paper presented at the Reproductive Rights
Symposium, sponsored by the Women's Rights Law Reporter in
February, 1982. The text has been expanded for clarification,
and footnotes have been added with the able assistance of Lynn
Monk and Andrea Rabin, Georgetown University law students.
1. And, of course, vice versa.
2. This point is probably an obvious one. Until very
recently, women were not represented among the lawmakers.
S. TOLCHIN & M. TOLCHIN, CLOUT: WOMANPOWER AND
POLrncs 17 (1973), (in 1973, women constituted 52% of the
population and 53% of the voting population, but only 3% of
the country's elected officials). A deliberative body made up
exclusively of men-or whites, the rich, or Catholics-no
matter how strong their desire to represent all of the people,
will, at least sometimes, inadequately discern, much less build
into their laws, provisions that reflect the needs and interests of
women--or nonwhites, the poor, or Protestants. This is not to
say that there is a monolithic women's viewpoint any more
than there is a monolithic men's viewpoint. Plainly there is
not. Rather, it is to suggest that women's life experiences still
differ sufficiently from men's, that a diverse group of women
would bring a somewhat different set of perceptions and
insights to certain issues than would a similarly diverse group of
men.
This observation about the importance of representation
among decisionmakers is no less relevant to the judiciary or to
juries than to legislatures. Cf Taylor v. Louisiana, 419 U.S.
522 (1975) (exclusion of women from juries violates fair cross-
section requirement of sixth amendment; women are discrete
and nonfungible group). It seems likely that cases such as
Muller v. Oregon, discussed infra note 14, would have
displayed different reasoning, even if the outcomes were not
changed, if a majority of the Justices had been women.
[Women's Rights Law Reporter, Volume 14, Numbers 2&3, Spring/Fall 1992]
© 1992 by Women's Rights Law Reporter, Rutgers-The State University
0085-8269/80/0908](ViewImageLocal?handle=hein.journals/worts14&div=18&collection=&method=preview&ext=.png&size=3)
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The Equality Crisis: Some Reflections on Culture, Courts, and Feminism
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