Vol. 13
No. 9 (September 2003)
ELUSIVE EQUALITY:
WOMEN’S RIGHTS, PUBLIC POLICY, AND THE LAW by Susan Gluck Mezey.
Boulder, CO: Lynne Rienner Publishers, 2003. 319 pp. Cloth $57. ISBN 1-58826-151-4.
Paper $24.50. ISBN 1-58826-176-X.
Reviewed by Susan
M. Behuniak, Department of Political Science, Le Moyne College. Email: behuniak@lemoyne.edu
As used in this
book’s title, “elusive” could refer to at least two different
points regarding women’s equality. First, the goal of achieving equality
of rights for American women is elusive as it evades the reach of those activists,
interest groups, courts, legislatures, and executive branch members who have
worked to achieve it. Second, equality is an elusive concept whose definition
is so difficult to comprehend or agree upon that it dodges evaluation or measure.
Given that the choice of definition would lead to the writing of two very
different books, Mezey establishes from the start that she uses the term in
the former sense to argue that women’s equality has not been realized.
And so, this
book documents the history of the concerted efforts to equalize women’s
status in the law—a story marked both by major steps forward and by
movement backwards (and in some instances even inertia). It is in this sense
that equality remains elusive. Although she pays homage to the fact that this
legal history spans roughly 227 years from the days when Abigail Adams chastised
John to “remember the ladies,” Mezey’s focus is a contemporary
one that examines the policy and legal changes since the 1960s occurring primarily
in the federal courts, but also in the executive and legislative branches.
These instances of equality and inequities are studied in contextual settings
ranging from education to the work place, from pay equity to family responsibilities,
and from voting rights to reproductive rights. Mezey’s conclusion is
that equality remains elusive in that rights in the United States continue
to be determined by gender.
Although she
describes this book as a “sequel” to her 1992 volume, IN PURSUIT
OF EQUALITY: WOMEN, PUBLIC POLICY, AND THE FEDERAL COURTS, Mezey’s label
isn’t quite correct. Instead of “part two” of the story
of women’s struggle for equality, what she presents here is an extensive
rewrite of the original volume that is then updated with the events of the
last 10-15 years. The chapters from the original work are renamed and in some
cases reordered, but they remain similar to their original versions both in
form and focus. The emphasis is on how the federal courts and law have affected
women’s equality. But beyond the new information presented here, the
crucial difference in this volume, is Mezey’s apparent change in assessment
of where women stand vis-à-vis equal rights. The earlier title’s
description of being “in pursuit” of equality indicated an optimism
that, while not yet obtained, equality was at least in sight. This contrasts with the description of equality as “elusive”
over a decade later. The unevenness of the journey on the road to equality
is captured in the titles of this book’s chapters that each begin with
an illustrative verb: “seeking,” “achieving,” “securing,”
“fighting” “battling,” “striving,” “accommodating,”
“securing,” and “retaining.” Together, these chapters
build a convincing case that substantial work remains to be done.
The first chapter,
“Seeking Constitutional Parity,” demonstrates the distance women’s
rights have come by tracing how far behind men’s rights they began.
In addition to this historical survey, Mezey emphasizes the importance of
the three judicial tests (i.e., strict scrutiny, heightened scrutiny, and
rational basis) used by the courts in evaluating equal protection claims,
and she deftly explains their practical implications.
In Chapter 2,
“Achieving Educational Equity,” the focus turns to the successes
resulting from Title IX litigation. These successes are qualified by the challenges
that remain regarding the issues of same sex schools, equity in sports, and
the eradication of sexual harassment from educational settings. Chapter 3, “Securing Workplace Equality,”
documents the progress that followed Title VII of the 1964 Civil Rights Act
and affirmative action policies, while also voicing concern about the struggle
over passage of the 1991 Civil Rights Act and the backlash against affirmative
action.
Chapter 4, “Fighting
for Pay Equity,” examines the persistence of pay inequities despite
the passage of the 1973 Equal Pay Act. Included in this analysis are the court
rulings, an examination of conflicts between the EPA and Title VII, and the
controversy over comparable worth theory. Chapter 5, “Battling Sexual Harassment,”
reviews early efforts by Catharine MacKinnon to have sexual harassment treated
seriously in courts, and the cases leading up to the Supreme Court’s
pronouncement that sexual harassment is a form of discrimination under Title
VII. Mezey also addresses the fallout from the Anita Hill-Clarence Thomas
hearings and the case of CLINTON v. JONES. The chapter ends with a discussion
of same-sex harassment.
Chapter 6, “Striving
for Equality in Professional Life,” stands as a unique chapter when
compared to other textbooks on women’s rights as it explores gender
inequities in academia, law, accounting, and the military. It also studies
the impact of private men’s clubs on women’s rights and the unresolved
tension between women’s careers and their obligations to family and
home. Chapter 7, “Accommodating
Work and Family,” is a particularly strong chapter as it examines biological
differences and their implications for equality between the sexes. It surveys
pregnancy discrimination, the cases leading up to passage of the Pregnancy
Discrimination Act, the equality versus difference debate and whether pregnant
women need preferential treatment to become equal, the issue of fetal protection
regulations, and the genesis and various incarnations of the Family Medical
Leave Act.
Chapter 8, “Securing
Reproductive Rights,” is actually a narrower tale of how the right to
abortion was established in ROE v. WADE, and not the legal terrain of other
reproductive issues such as sterilization, birth control, new reproductive
technologies, adoption, and custodial rights, (issues usually left to the
states.) It is her exploration of how the right to abortion was affected by
subsequent cases until 1986 that particularly demonstrates Mezey’s skill
in taking complex concepts, political struggles, and cases and distilling
them to their essence.
Chapter 9, “Retaining
Reproductive Rights,” continues the story of legalized abortion and
how the right to choose was retained, although curtailed, by the Court in
1989 and 1992. This chapter also examines the Freedom of Choice Act, the issue
of access to clinics, and the controversy over late-term abortions. In the “Conclusion,” Mezey
maintains that “despite important achievements in the law, society is
not at the point where the differences between the sexes are interesting and
intriguing but not determinative of a person’s rights and stature”
(p.288). In an age when many (and perhaps even most) students believe that
the struggle for equality has long been won and that feminism is a thing of
the past, this is an important insight and timely reminder.
A book this descriptive
offers students an informative overview of legal history, but it also relies
on good teaching to make it effective in the classroom. The chapters are so
packed with summaries of cases and policies that there is little room for
analysis. For instance, although the case is made that equality has not been
achieved, the answer to the question of why this has been so seems itself
elusive. Indeed, what explains why women’s rights have been “secured”
“retained” or “achieved” in some policy areas, while
remaining a “battle,” a “fight” or “elusive”
in others? And why does equality look more elusive today than perhaps a decade
ago? These are intriguing questions for classroom discussion, but Mezey doesn’t
offer students much to go on in considering them.
Another concern
that I have about the book as a teaching tool goes back to that second meaning
of “elusive,” the one that questions whether there is consensus
as to how equality is defined. Again, Mezey is clear that she utilizes a particular
definition of equality and states in the “Introduction” that it
is a liberal feminist approach. She summarizes this as, “premised on
the belief that equality between men and women in the United States has been
furthered by removing the legal constraints that impeded women’s access
to rights and opportunities” (p.2). She continues by naming and briefly
describing other feminist perspectives and states that “this book does
not endeavor to assess the quality of their beliefs or compare their effectiveness
in bringing about social change” (p.3).
Fair enough.
But my concern is not that Mezey defines equality as a liberal feminist nor
that she opts not to debate alternative perspectives, but that the liberal
definition of equality is not explicitly explained (as it is in the 1992 book);
nor are its implications for this book duly noted. This is important because
the liberal meaning of equality as demanding that similar people are treated
similarly (i.e., the same) under law shapes this volume in at least two ways.
First, it affects
the analysis of to what extent equality has been secured. For example, each
chapter contains a table summarizing the federal cases on the chapter’s
topic and including a column where the case disposition is labeled as either
“pro-equality,” or “anti-equality” (or in the chapters
on reproduction as “pro-choice” or “antichoice”).
These are interesting and thought-provoking tables, but to make any sense
of them, it should be crystal clear that Mezey assesses equality according
to whether the court decision treated the sexes alike. In this, feminists
from other perspectives might disagree with her analysis that MICHAEL M. v.
SUPERIOR COURT (upholding a sex specific statutory rape law) was an anti-equality
case, while MISSISSIPPI UNIVERSITY v. HOGAN (voiding a women’s only
nursing school) was a pro-equality case. In addition, other liberal feminists
might disagree with her pro-equality labeling of court decisions that upheld
preferential treatment for pregnant women.
A second implication
of employing the liberal feminist definition of equality as sameness is that
it tends to minimize not only the differences between men and women, but those
among women themselves. “Women” becomes a universalized concept
that implies a sameness of experience and interests that cut across race,
sexual orientation, class, and disability. This too has implications for the
analysis of how close to equality we have come because we are not sure which
women we are studying. For example, in the chapter on work and family there
is no mention of women’s rights in the context of lesbian partners or
parents, and in the chapter on reproduction the abuses inflicted upon women
of color by the government in the name of reproductive control are not discussed.
In addition, there is a whole chapter on professional life, but little mention
of women on welfare, and a chapter section on the military, but no mention
of the “don’t ask, don’t tell” policy. And how has
the Americans with Disabilities Act and subsequent cases affected disabled
women in particular? That liberal feminism tends to be blind to social signifiers
other than sex is an old criticism, but since the book will serve as a textbook
for students, the choice made not to study these differences among women should
be acknowledged. That most of these are not the stuff of federal court cases
may give Mezey reason to omit them, but this also speaks volumes about the
limits of federal law to address the inequalities that many women experience,
and questions whether we can in fact assess women’s equality without
looking beyond federal law.
Yet, along with
the limits of liberal feminism, are the strengths of the perspective. And
here, Mezey makes the most of them by arguing that much of the advancement
of women’s rights has indeed been won not only within the federal legal
system but also under the banner of an equality that demands identical treatment
regardless of sex. She notes: “[A]lthough law itself cannot bring about
an end to political, social, and economic inequality, it sets a standard and
creates a tone, in no small part because it responds to and helps engender
awareness of feminist goals” (p.3).
In summarizing
the major federal cases, laws, and public policies affecting women’s
rights to date, this book is a valuable resource that should find a place
on the shelves of libraries and faculty offices. It also deserves a place
on course syllabi as required reading. While, particularly appropriate for
courses such as “Women and Politics” and “Women and the
Law,” it could also be used more generally to investigate how law has
the potential to advance human rights—a story worth telling, remembering,
analyzing, and debating even now.
REFERENCES:
Mezey, Susan
Gluck. 1992. IN PURSUIT
OF EQUALITY: WOMEN, PUBLIC POLICY, AND THE FEDERAL COURTS. New York: St. Martin's Press.
CASE REFERENCES:
CLINTON v. JONES,
520 US 681 (1997).
MICHAEL M. v.
SUPERIOR COURT, 450 US 2464 (1981).
MISSISSIPPI UNIVERSITY
FOR WOMEN v. HOGAN . 458 US
718 (1982).
ROE v. WADE , 410 US 113 (1973).
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Copyright 2003 by the author, Susan M. Behuniak.