Reflections on Constitutionalizing Women's Equality

Abstract

In commenting on Kathleen Sullivan's Brennan Lecture, Constitutionalizing Women's Equality, I am, in a sense, continuing a conversation begun nearly fifteen years ago, in a seminar on Groups, Inequality, and the Constitution, which was the first course Sullivan taught as a professor and one of the last I took as a student at the Harvard Law School. The first item worthy of comment in this Brennan Center Jorde Symposium is how little has changed in the intervening years with respect to the constitutional law concerning the group whose equality is here at issue: women.' Indeed, so little has changed that Sullivan could well have delivered a virtually identical lecture fifteen years ago. Perhaps because the core of this law has been so firmly established for so many years after having been so close to nonexistent for so many preceding centuries, Sullivan's lecture is largely backward looking, with little in the way of predictions or prescriptions for the future. In this response, I offer my own version of the history and then apply some of Sullivan's analytic dichotomies in a somewhat more forward-looking way, to aspects of the constitutionalization of women's equality not yet fully settled in American law. As to the history,2 I have a somewhat different perspective on both the work of Ruth Bader Ginsburg and the role of race in constitutionalizing