The Sixties Shift to Formal Equality and the Courts: An Argument for Pragmatism and Politics (1998)

Conventional wisdom tells a simple story of feminism during the first seventy years of this century. As the century opened, the women's movement was single-mindedly focused on suffrage, arguing that women should have the vote both because they are men's equals and because they are different from men in that their finer sensibilities will transform and purify politics. When women finally won suffrage in August of 1920, the coalition of women's organizations that had worked so long and so hard to achieve this goal fell apart from sheer exhaustion.(1) Feminism slept during the next forty-plus years.(2) The depression saw women forced out of a tight labor market that reserved jobs for male breadwinners.(3) The 1940s saw women drawn into and then pushed out of the labor market as men left for and returned from World War II.(4) The 1950s were particularly dismal for middle-class white women, who were once more relegated to the domestic sphere and repeatedly told that any well-adjusted woman finds complete happiness and fulfillment caring for her husband and children.(5) The second wave of the feminist movement suddenly became visible in 1963 with the publication of Betty Friedan's book, The Feminine Mystique.(6) Sameness feminism and formal equality arguments dominated this wave; specifically, the idea that women and men are similarly situated and, therefore, should have the same rights and opportunities.(7) The second wave lasted until well into the 1980s, when difference feminism suddenly emerged with its emphasis on the differences between women and men and the need to value women's lifestyles as well as men's.(8) In this essay, I tell a more complicated story about feminism during the twentieth century and about how feminists came to focus so overwhelmingly on formal equality by 1970. Feminism never quite died between suffrage and the second wave, though it did suffer a number of setbacks. From 1920 to 1963, feminists were divided into two hostile camps, one supporting a formal-equality approach--sameness feminism--and the other supporting legislation protecting women in light of their different needs and responsibilities relative to men--difference feminism.(9) By 1970, however, this difference strand had disappeared. Everyone was on the formal equality bandwagon. In the first section of this essay, I explain this shift. I describe the objections to formal equality at the beginning of the sixties and how those objections disappeared over the next few years. In the second section, I assess the successes and failures of the formal equality approach that has dominated feminism during the second wave. I also consider the extent to which the problems that have appeared were foreseen during the sixties when the crucial shift took place. In the third section, I consider options for the future. We live in a far different world than did the feminists of 1970. I suggest that in the future, formal equality and constitutional cases in the courts will be less useful and more problematic than they have been in the past. I propose that we use a new Equal Rights Amendment (ERA) to shift to an approach that relies on women's political power to achieve equality rather than on judges enforcing formal equality. I. THE SIXTIES SHIFT After suffrage, one group of activists supported a formal equality approach under an Equal Rights Amendment. These women argued that an ERA was necessary to eliminate the many laws discriminating between women and men. At the time, laws routinely discriminated with respect to regulation of employment and families, obligations of citizenship, competency, and age, as well as crimes and sentences. A few examples from each area will give the reader a sense of the breadth of sex-specific regulation. State laws often specified maximum hours or minimum wages for women workers in general or in certain industries, or banned women from bartending or working in factories at night. …