Thursday, August 22, 2013

Equality: What's in a word?

by Christina Bellon

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


  1. Chris, this is a very interesting topic and post. Thanks for writing it.

    In the 6th paragraph you seem to be suggesting that one reason for favoring substantive equality is that formal equality is difficult to achieve. In the real world women and minorities are just not treated the same by judge and jury even though the law requires them to. This suggests (to me) that the goal of substantive equality is important in helping real humans achieve something closer to true formal equality. Is this what you are suggesting? And, if so, how does that work?

    Also, it seems to me that you should be happy to allow that formal equality is more fundamental and important than substantive equality. After all, the latter is only important because of the contingent circumstances you describe. But formal equality is a rationality condition on any legal system. Not, of course, in treating all humans equally, but in behaving consistently with respect to whatever beings and entities are stipulated to be equal.

  2. Randy, thanks for the comment. I think we're on the same track and you understand what I'm getting at. What we see is that in a fundamentally unequal society, treating people 'as though they are equal' does nothing to advance justice. So the challenge in the legal system is the designation of equals, the treatment of which should be consistent. It brings to mind an old mentor of mine in history of philosophy -- John Carnes -- who opined when philosophers claimed Plato abhorred equality, "Look three kinds of soul, society ordered along their strict division and separation, no equality there." But, Carnes would love to say, "equality is appropriate only among equals, and Plato recognized that", pointing out the lengths he went to justify the equal ferocity of women and the differential treatment of guardians in breeding. The challenge is identifying with whom it is that we are equal, under what conditions, and to what ends.

    I'm planning an examination of the rationality requirement in law for my next posting. But briefly, if Lance and Fred are deemed equal by the legal system, then formal equality requires they be treated the same, if for no other reason than for consistency (which, by the way, is really important). But, if the legal system errs in the initial assessment of Lance and Fred as equals then the same treatment, while consistent between them, might actually amplify the disparity between them and the implications for justice along with it. This problem of who really is equal is interesting, and it's not obviously always a matter of mere social artifacts, though those are a huge element.

    Susan Okin has a wonderful discussion of it in her influential "Justice, Family, and Gender" Basic Books, 1989. It's been a while since I looked at it, but it goes something like this: she examines a court ruling on pregnancy leave (1980s), which was brought by several women against a major employer who would deny promotions to women because they had gaps in their employment records from taking time off for the births of their children (not talking months off, just a few weeks at most). The claim was that men would get an unfair advantage in the promotion chain because they never had to take time off work for the births of their children. The judge ruled that there is nothing discriminatory about a hiring policy which does not allow pregnancy leave, since it denies 'all persons employed' leave for pregnancy. Okin points out the apparent universality of treatment the court imposes neglects to account for the fact that only 'women persons' actually become pregnant.

    It might be the case that with the successful and successive application of substantive equality to the law we might bring ourselves to a social order in which it is no longer necessary... maybe. I'm not so confident, nor optimistic. But I'd be willing to allow that the concept of substantive equality contains within it the seeds of its own irrelevancy.

  3. Thank you for the post Christina, it got me thinking.

    If I understand substantive equality it arose out of the recognition that formal equality may not be sufficient to ensure that women enjoy the same rights as men. I see this as related to some interesting eco-feminist work that maintains that a discussion of rights isn't enough.

    In particular I'm thinking about the "ethics of care" with its de-emphasize on abstract rules and principles in favor of a contextualized ethics focused on caring and relationships. Concepts such as moral law, rights, duties, obligations, justice etc presuppose a world in which interests conflict, the demands of justice restrict and limit human freedom, and morality battles egoism. An ethics of care begins with a moral universe in which cooperation replaces conflict, relationships replace confrontation and caring for others replaces rights and duties. It is a moral universe in which mothering and friendship, rather than abstract rules such as individual autonomy and freedom from interference serve as moral ideals. Eco-feminists offer different explanations of why an ethics of care is particularly a women's perspective but often land on the idea that the ethics of care is simply more relevant and compatible with the life experiences of women. Specifically as those experiences follow from both reproductive biology and the possibility of mothering. Some maintain that the vocabulary of rights and duties etc is highly artificial and inappropriate in the context of a mother/child relationship.

    Others have argued this mother/child model is not only useful for in the context of mother/child relationships but it also covers human/nature relationships as well. That an ethics of care can be the foundation of a meaningful environmental ethics.

    The interesting questions, I think, are do woman and men experience, value, and understand the natural world differently? And if yes, how significant is the biology (as opposed to the culturally upbringing)?

    Randy Larsen

  4. Randy,
    Thanks for the comment. Yes, feminist care ethics has been adopted by several eco-feminist and other environmental philosophers as an enticing ethical framework with distinct advantages over other models, such as stewardship, environmental rights, or deep ecology models (for example, Roger King, Jim Cheney, and Val Plumwood). I know there are even some wilderness ethicists who are considering the care model as an appropriate ethical framework for wilderness restoration policy, as care ethics focuses our attention not on the carer but on the cared for -- underscoring the vulnerability of wilderness ecosystems to human activity and of the need to restore wilderness areas on their terms, so to speak. Not all ecofeminism is care-centered though (I'm thinking here of Victoria Davion, Chris Cuomo, Karen Warren, Lori Gruen, etc). On the other hand, several feminist philosophers (myself included) have been working on care ethics, refining it as an ethical framework -- freeing it from the original somewhat constraining mother-child ideal -- and applying it to various circumstances where we cannot assume the kind of intimacy and feeling assumed in the mother-child ideal. This enables its application to a broader range of moral and ethical situations, including our treatment of non-human animals, the environment, international relations, education, etc.

    But, I hope I wasn't implying that substantive equality arose from within feminism. It has been a long-standing alternative conception of equality which reaches back at least to to the mid-1800s (Mill, Marx), if not much older. It is just particularly appealing within a feminist analysis as it allows us to make sense of the seeming ironic (tragic) effect of applying a formal concept of equality to circumstances in which doing so makes the individuals less equal or worse off or increases injustice. Feminist philosophers of law and politics/policy have embraced this concept as it allows us to 'see' what is otherwise 'unseen'.

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  6. Professor Bellon,

    I think these Supreme Court cases are really interesting from this perspective. I had thought that the ruling for DOMA was "good" and the VRA "bad" but I didn't really have a way to express what was wrong with the VRA ruling until now (other than it seemed to deny people rights). I think it's important to learn about the different kinds of equality because they so directly affect us. Not just myself as part of a minority, but also those who have a lot of privilege in society.

    I think it's important to know these kinds of definitions regarding equality because it helps each person realize the place and value they have in society. It's unfortunate, but I would argue that society places more emphasis and value on certain groups of people. Because of that, and because of the various levels of inequality within our country (and around the world), it is important to have a basis in rejecting unequal laws, measures, and policies.

    Most importantly, I think most people have an idea that equality is just one thing-formal equality. It's the kind of equality that I think is most valued in America and the most talked about in relation to government and history. It's the kind of equality that has given many minority groups the rights we have today, and the rights we will gain in the future. It is obviously important and has played a huge role in gaining the understanding that women, or people of color, or gay people are people and deserve the same rights because of that fact.

    However, as you mentioned, it's not the only kind of equality that matters. Regardless of being people and deserving the same protections and rights under the law, substantive equality is almost more important because of the hatred and abuse that minority groups face. It's why we have laws against hate speech and hate crimes, why the VRA was enacted in the first place, and as mentioned, why in many other countries, women are not charged more for health care and are given paid maternity leave. It's because of our differences that substantive equality is so important and needs to be valued.

    I'm surprised no one so far has really discussed people with disabilities. I think our laws regarding the disabled are some of the best examples of substantive equality. After the American Disability Act was passed, people with disabilities were treated equally, as people who deserve the same rights as one who is able bodied. However, the ADA and subsequent laws, have been enacted to point out the differences between the abled and disabled. And obviously, that is not a bad thing. It is important to give a substantive (or I would say, a legitimate) equal opportunity to people with disabilities, especially within classroom settings. It's what allows students with disabilities, like myself, a way to protect ourselves and ensure that we can be included in a learning environment. The modifications to a curriculum or classroom or test are put in place because we value (or are forced to value) the differences in each person and so that each person can hope to perform on a more equal level.

    As I see it, formal and substantive equality fit hand in hand-they should support each other. Formal equality seems to be the building blocks or the foundations that allow each person to be treated equally regardless of their circumstances. But substantive equality is what allows each person to be treated equally as an individual who comes from a different background and perspective. I'm not sure one would be complete without the other, but I think that the Supreme Court and this country hasn't really realized that-or even realized the consequences of their actions.

    1. Navarra, thanks for your comments. You're right, the ADA is an excellent example of an act of legislation expressing the concept of equality in its substantive variation.

      You raise the possibility that substantive and formal equality might work together, but I'm not sue that they do so necessarily. It's possible that substantive equality and formal equality work well together, in their respective domains. But then, of course, "working well together" is an evaluative phrase which implies some standard other than the concepts themselves. Perhaps on a certain progressive understanding of justice, like Rawls's, for example, where justice is a measure of the access of the members of the community to a set of basic goods necessary for a good life, coupled with a liberty principle that requires everyone to have as much liberty as is consistent with the same for others, where "much" is understood not simply in a longer itemized list of liberties, but instead in the sense of being unimpeded in more areas of one's life rather than fewer, to pursue one's conception of the good, and to access those basic goods. You get the formal conception of equality operating in terms of each being equal in virtue of being a rational member of society able to formulate a conceptions of the good, coupled with a substantive conception of equality expressed in terms of access to the basic public goods.

      But these two conception of equality can conflict. When they do, it might behoove us, on something like that Rawlsian conception of justice, to square the problematic legislation or institution, such that the two conceptions can be brought back into partnership. The ADA is an excellent example of their being incongruous, even in conflict. The ADA ensures a legally protected entitlement of access to those who are differently able -- who do not fit the norm with regard to physical and cognitive ability. But it does so by shifting the cost of doing so from the individual with the disability to the employer, restaurant owner, gallery, or school. That someone with a disability works at office X or goes to gallery Y or attends school Z, means that X, Y, and Z, must restructure their physical and cognitive space to allow for that individual to access their services, employment opportunity, educational opportunity, etc. The burden is settled by the ADA on those individuals or organizations. So, it can be argued that those individual are not being treated equally, in the formal sense, since they are made to bear costs others, who are otherwise the same as them, do not have to bear. The attempt to achieve substantive equality for the differently able makes employers, restauranteurs, schools, etc, unequal. This is a problem with the legislation. It is also the single most frequent justification used to resisted the ADA's implementation. Surely, if the matter of ensuring access to those previously marginalized is a concern to the whole of society (which it ought to be), then surely the whole of society ought to bear the burden of rearranging and re-organizing our physical and cognitive settings to ensure those who are otherwise marginalized and excluded by them can participate fully.

      I'm not sure I'd be willing to predict how the US Supreme Court might rule, should that ever be brought to their attention.