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.
Professor & Chair
Department of Philosophy
Professor & Chair
Department of Philosophy