Lately I’ve been reading some of the recent rulings by the
U.S. Supreme court and I think I’ve detected a distinct conceptual shift with
regard to the nature of equality.
Specifically, I believe the Court has begun to rest its arguments more
on a formal notion of equality than a substantive one. This has important implications for our
understanding of justice.
Formal equality requires that individuals be treated
equally, where equal treatment means the
same treatment, while substantive equality conceives of the relative
positioning of individuals as they exist within a society structured such that the same treatment actually accentuates
disparities between them. Everyone is formally equal before the law when
everyone who comes before the law is treated the same, without regard to considerations
of age, race, gender, residence, nationality, faith, or bank balance, or really
any of the other myriad ways in which we are different and similar with each
other. What is important on this conception of equality, is our being equally
rational and autonomous, our being the same “on the inside.” Justice requires
that law take into account only the features of individual as they are the
same, where the issue at hand could have been one which involves anyone, not
merely the specific individuals before it at this moment, in this particular
case. Formal equality considers us only as we are roughly interchangeable.
Substantive equality, however, takes into consideration an
individual’s social, political and economic contexts, wherein sex, race, age,
disability, among other differentiating variables, bear on an individual’s
capacities for development, opportunities for advancement, or even on what is
reasonable, expected, or makes sense. The extent to which a society is hierarchical,
where the benefits and burdens of social life are distributed according to
one’s status in the hierarchy, will determine the extent to which formal
equality actually results in justice or not. Sole reliance on formal equality
risks reinforcing the existing distribution of advantage and disadvantage.
According to Marx, in a capitalist society we are all free to live under a
bridge, though only the poor really have to worry about that (ok, that’s a
paraphrase, but you get the idea). Substantive equality allows us to adjust our
social and economic policies, our laws and statutes, and our educational
systems to mitigate the effects of social hierarchies, to attempt to bring
about a society in which the burdens and benefits of social life are not
distributed according to one’s position in the existing, historical hierarchies
of advantage and disadvantage.
There is much that is reassuring and comforting in the strictly
formal conception of equality – it promises a deep consistency: I can know that
if you were in my shoes and I were in yours, exactly the same decision would be
rendered. Reassuring given that human
history is rife – yes, rife, stinking rife – with examples of how taking such
features of an individual, such as their faith or their race or their gender,
into account has worked decidedly
against that individual’s interests, against the course of justice and against
the promise of equal treatment. Women denied the right to own property or to seek
an education; racially identified others owned as property or, when no longer
property, treated as little better than a feral dog or mindless minion; religious
minorities, apostates and atheists denied the right to contribute to civil
society, to serve on juries, to swear oaths of allegiance (because such oaths
have historically been rooted in a particular conception of the divine) or to
seek an education. So, against this historical context, formal equality looks
positively spectacular. With this conception of equality in mind, I can
confidently stride into a court and know that my being a woman, atheist,
immigrant, will not be used against me. I can be confident that if formal
equality is pursued, a very important form of justice will prevail.
Clearly, then, against this level of positive appeal,
substantive equality must seem a throwback to a by-gone era where bias and
prejudice run amok. But, that would be a hasty conclusion. Substantive equality
focuses our attention on the outcome of individual and collective action – it
focuses our attention on the context of action and choice. It requires us to
ask, not “are these individuals being treated the same?,” but instead it demands that we ask, “why are
these individuals advantaged or disadvantaged in the ways that they are?” Substantive
equality is a conception of equality which takes the different positions of
individuals as they exist in a stratified and hierarchical society as relevant. On this conception, equality
is not about treating people the same, but about equalizing – leveling the
playing field, shaking free the shackles of restraint and denial, throwing off
the smothering blanket of unchosen domesticity, liberating and nurturing the
deprived spirit. Here, equality means to become
equal, from a position of inequality to a position of equality with respect to
others within a structure that no longer advantages or disadvantages unfairly. Assuming
we are equal, as formal equality does, and then treating us as though we are,
is to undermine justice, not to advance it. This conception of equality
recognizes that society is stratified and hierarchical, that individuals are
made better or worse often despite their best efforts, and that this
stratification actually impedes individual freedom and autonomy.
So, with an awareness of substantive equality, coupled with
an awareness of the sexist and racist, classist, able-ist, and age-ist
structures that make this society much of what it is, when I walk into that
court room, my confidence that justice will prevail when it is understood in
terms of formal quality should wane. In a society that is still gendered,
wherein being a woman is still not identified with autonomy but dependence, not
with rationality but hormonally driven emotionality, I might worry that my
words in court might not carry the same weight as the same words uttered by a
man, that my evidence might not carry the relevance that the same evidence
would if offered by a man, that what is clearly reasonable from the point of view
of woman (with the lived experience that includes) would not be understood as
reasonable at all by those who experience the world from the point of view of
man in a gender structured society. Equality? Whose equality?
So how is this conceptual shift expressed in the Court’s recent rulings? The court’s decisions in DOMA and VRA are perhaps the clearest illustration of this shift. DOMA was the first effort to create a federal act which reduced individual liberty by denying to a portion of the population a right enjoyed by the vast majority. It denied the right of homosexuals to enjoy the benefits and, yes, the burdens, of marriage as recognized in law. DOMA denied to gays and lesbians the freedom to marry – it treated gays and lesbians differently with respect to the social benefit of marriage. Ruling DOMA unconstitutional affirmed the value of equality understood as formal equality, or equality of treatment. As far as the constitution is concerned, the court ruling implies, gays and lesbians are in every way identical to heterosexuals and should not be prohibited from having their unions recognized as marriage in the same ways under the civil law. Equality of treatment. With this ruling, the Court reaffirmed the concept of formal equality at the core of one of the world’s greatest exemplars of liberal political philosophy – the US Constitution.
In the VRA ruling, the court struck down Article Four of the Voting Rights Act which was enacted by Congress as an attempt to ensure compliance with the 14th and 15th Amendments to the US Constitution guaranteeing to every citizen of every state the right to vote unimpeded. The article was intended to ensure that in those states which had either a history of racial exclusion and oppression – typified by efforts to use the law to deny African Americans the vote or to right the shape of districts to guarantee white majorities – would have to obtain federal authorization for any changes to their voting procedures before those changes could be implemented. What is known as ‘prior approval’ required the jurisdiction to prove to the satisfaction of the federal government that the proposed change would not diminish the rights of all citizens, but especially racial minorities, to participate in voting. In a democracy, where voting is the principal means for expression of political will, or satisfaction with the legislature and running of government, undermining the determination of the will of the people – all of the people – similarly undermines the legitimacy of the political system. The court ruled that the requirement for prior approval was unfairly burdensome to the citizens of those jurisdictions who, through the legislative actions of their governments, wanted to change their voting procedures. In striking down the requirement for prior approval, the court affirmed the centrality to the Constitution of the conception of formal equality. To require some, but not all, jurisdictions to obtain prior approval was to hold the citizens of those jurisdictions to a different, more onerous, standard.
Additionally, and since I’m on the subject, the court’s ruling
in the California Proposition 8 case is interesting, and for many confusing,
since the ruling in DOMA would seem to have justified anticipation of a ruling
which affirms the lower court’s decision to strike Prop 8 down as contrary to
the newly liberated US Constitution. But instead, they ruled that the
appellants lacked legal standing to bring the appeal. They ruled this way after
hearing the case on its merits, after allowing the arguments to be heard, and
after engaging in questions on the merits of the case. To say the least, this seemed
a low probability ruling. The effect, however, is in harmony with their action
regarding the VRA. The decision effectively leaves intact the state court’s
ruling that the proposition violated California’s constitution. Each state,
therefore, is equally free, within their own formal procedures, to determine
the matter of marriage for their own citizens. This clearly has the effect of affirming
the formal equality of the states and, on the republican model of governance,
the formal equality of individuals to govern themselves.
What’s interesting here? It’s just not so simple to believe
that one conception of equality is always better, more just, fair, or
progressive, than the other. Formal equality applied in the DOMA case advanced
the status of gays and lesbians in this country overnight. Where they were
denied the right to marry, with all its attendant political, economic, and
emotional benefits, the application of formal equality to the law recognized in
them the same right as heterosexuals have enjoyed since marriage was invented.
But in the VRA ruling, the application of formal equality to the law risks a
deterioration in the voting rights of minorities across the country, not merely
– again – in the former Jim Crow
states. Witness the mere two hour delay between the Supreme Court issuing its
ruling and the Texas legislature approving some of the most restrictive voting
rights laws in the country – laws which had been repeatedly denied by the
justice department for their risk to the voting rights of resident minorities. Two hours… two hours. Breathtaking what concepts can do.
Christina Bellon
Professor & Chair
Department of Philosophy
Sacramento State
Christina Bellon
Professor & Chair
Department of Philosophy
Sacramento State
