Saturday, February 14, 2009
The vigorous Valentine's Day media (and commercial) attention to relationships prompted me to reread Christine Littleton's classic article, Reconstructing Sexual Equality, 75 California Law Review 1279-1337 (1987). More than twenty years ago, Littleton, a Professor of Law at UCLA, Littleton sought to resolve the then-current (and still vexing) sameness-difference problem in equality jurisprudence. Her solution was an argument that difference should neither be eradicated nor accommodated, but rendered "costless." Eradication seemed to her impossible, and accommodation was faulty because it could be used to recreate inequality. Instead, equality should be "acceptance."
Littleton's acceptance model has not been accepted as constitutional doctrine. Yet it remains worth contemplating. Today, many persons are both mothers and soldiers, but Littleton argued that making gender difference less costly might mean " requiring the government to pay mothers the same low wages and generous benefits as most soldiers."
She added that it could also mean "encouraging the use of motherhood as an unofficial prerequisite for governmental office." In light of our last election, this is quite an interesting notion to contemplate. Littleton continued that if motherhood were "a paying occupation with continuing status perks, many more men might be induced to stay home and raise their children. Alternatively, but less likely, making difference costless could mean ceasing to pay combat troops."
In part, her argument is also a solution to the equal protection "intent" problem. As she wrote:
For example, in Personnel Administrator v. Feeney [442 U.S. 256 (1979)], the Supreme Court upheld Massachusetts' lifetime veteran's preference against an equal protection challenge, reasoning that Massachusetts had not intended that preference to lock women into lower-level and dead-end civil service positions, regardless of this obvious effect. Under an equality as acceptance model, a state's failure to provide equal preference for the gendered female complement to military service would be evidence of intentional discrimination. Thus, even without additional constitutional or statutory enactment, a change in the Court's underlying model of equality could alter the result in actual cases.
The Court's model of equality may have changed since 1987, but it does not seem any closer to making differences "costless" in the manner Littleton suggested it should.