Equality, Sameness, Difference: Revisiting the Equal Rights Amendment

The Equal Rights Amendment, originally the brainchild of suffragist Alice Paul in the early twentieth century, endorses a particular view of equality. That view, as expressed in Section 1 of the 1972 amendment, endorses equal treatment as same treatment. This understanding is both the cause of praise and of pause, historically. Harvard University professor Paul A. Freund wrote in 1971 that the standard of sameness is difficult to apply given the vast and varied roles played in society by the different sexes (1971). A 1971 piece by Barbara A. Brown, Thomas I. Emerson, Gail Falk, and Ann E. Freedman championed the amendment on the standard of sameness, noting, “Our legal structure will continue to support and command an inferior status for women so long as it permits any differentiation in legal treatment on the basis of sex” (873). The equation of equality with sameness has been the subject of intense feminist debates, perhaps most famously characterized in Joan W. Scott’s essay “Deconstructing Equality-Versus-Difference” (1988). Deconstructing this binary, Scott insists that when we claim that equality and difference are antithetical,

it denies the way in which difference has long figured in political notions of equality and it suggests that sameness is the only ground on which equality can be claimed. It thus puts feminists in an impossible position, for as long as we argue within the terms of a discourse set up by this opposition we grant the current conservative premise that because women cannot be identical to men in all respects, we cannot expect to be equal to them.

(46)

In spite of Scott’s powerful argument, this dichotomizing of equality and difference not only hindered ERA advocates in the 1970s but it also continues to constrain several struggles for so-called equality today. In our work as a collective, we see this struggle most starkly in debates surrounding “marriage equality,” where rhetorical and visual narratives of sameness saturate pro-gay-marriage political campaigns.¹ “Sameness” in this case both makes a claim to normalcy and respectability that has been historically denied to sexual minorities but also levels a demand that the state recognize only gay and lesbian kinship structures that mimic the ideology of family already upheld by contemporary marriage law: family units headed by monogamous conjugal couples. Here, difference is once again sacrificed in the clamoring toward equality, while ignoring much greater need for comprehensive family law reform. As legal scholar Nancy D. Polikoff notes, gays and lesbians are asking what straight people have that they don’t, instead of asking what kind of legal protections might we need to support our families as they are lived and sustain us, not as they are imagined (2008).

In Against Equality, we see the question of “equality” as one that is overlaid by the history of the ERA, but also by the history of what are broadly construed as “minority rights” and/or affirmative action in the U.S. Today, especially after the June 2015 Supreme Court decision effectively legalizing gay marriage, it is—incorrectly—assumed that women and ethnic and racial minorities have achieved their share of equality, while the right of gays and lesbians to equality remains one of the last frontiers. We know, of course, that this is false on several fronts, even putting aside the problem of framing the attainment of rights in such ahistorical terms.

Women in the U.S. still only earn seventy-eight cents to the dollar and face considerable challenges in a culture and an economy which penalizes women for pregnancy and single status despite legislative fixes like the 2009 Lilly Ledbetter Fair Pay Act, which have yet to rectify the matter of unfair pay discrimination for women (Ellis, Hartmann, and Hegewisch 2015, 1). For people of color, the bar has hardly moved, and the recent attention finally being paid to the criminalization of black and brown people, the result of several publicly documented murders by police in particular, indicates that people of color have hardly achieved anything approaching parity. In addition, they still make less than...