Gender Equality: States as Laboratories

Abstract

Two decades ago, the calls of women’s groups for gender equality captured the attention of the legislatures, the courts, and the academy. “Liberal” feminist theorists called for the passage of the federal Equal Rights Amendment (“ERA”) and advocated the Supreme Court’s application of heightened scrutiny to gender classifications. Meanwhile, “radical” feminist theorists claimed that the liberal approach would achieve mere formal equality or equality of treatment between men and women but would not establish women’s actual equality in society. These radical theorists called for more extensive, affirmative government measures to achieve substantive equality for women. The states’ failure to ratify the liberal-supported federal ERA and the Court’s failure to adopt a strict scrutiny standard for gender-classificatory laws may appear to have rendered this liberal-radical debate academic. With the adoption of state equal rights amendments by several states, however, this debate merely has shifted to different forums. Although state courts have interpreted their state ERAs largely in accordance with the liberal analysis, the case law from these states provides material from which to analyze the efficacy of both the liberal approach to gender equality and the radical theorists’ critique of that approach. States with ERAs, therefore, serve as laboratories in which to consider the larger issue concerning which approach is more promising for achieving women’s equality. Part I of this Note briefly surveys different theoretical approaches to equality in general, exploring the contours of symmetrical and asymmetrical theories of equality. Part II focuses on gender equality theory in particular and considers liberal feminists’ call for equality of treatment as well as radical feminists’ demand for equality of results. Part III examines state courts’ interpretations of their state ERAs -- in particular, in areas where the applications of radical and liberal feminism support different results -- in order to assess the efficacy of these theories in practice. Part IV draws some lessons from states’ experiments with equality and concludes that while the liberals’ call for gender-neutral legislation should be heeded in general, the radical approach offers important insights into how legislation and doctrine can be crafted to achieve formal and substantive equality for women.