Constitutional and social equality: legacies and limits of law, politics and culture.

Abstract

In western countries, court decisions and legislative acts have generally mirrored the societal trends towards equal legal rights for women. However, in examining difference theory and the equal rights guaranteed to women through the legal system in the US, this article questions whether societies will soon accept absolute legal equality. In particular, it considers how biologically phrased explanations of the social status of women have affected legal rules and the implementation of those rules. Following a discussion on the history of legal inequality, the attainment of equality and extra legal rights is explored. The paper then considers the desirability and possibility of absolute or formal legal equality for women in the US. It is concluded that as long as there is continued recognition within the courts that the physical differences between men and women can provide a basis for different legal treatment, then formal equality cannot be obtained. Moreover, as long as strict legal equality does not exist, there will always be the opportunity to treat women differently solely because of their sex.