Abstract
In her characteristically insightful and incisive paper, Dean Sullivan orients debates about how to constitutionalize equality of the sexes along five axes: (1) general versus specific; (2) symmetrical versus asymmetrical; (3) applicable only to public entities versus applicable to private ones as well; (4) negative versus positive; and (5) judicially enforceable versus hortatory norms. She notes that American constitutional law operates under strong conventions preferring the first of each pair of dichotomies, whereas international documents such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) as well as the constitutions of many other democracies do not.' With one exception, to which I shall return momentarily, there is a mutually enforcing internal coherence to this pattern. Dichotomies two, three, and four present a choice between formal, or thin, equality and a more substantive, or thick, equality.2 Constitutions with thick conceptions of equality place strong affirmative obligations on the government, thereby taxing the institutional capabilities of courts. This pressure can lead courts to interpret those obligations as hortatory or at least nonjusticiable.3
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