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).

*********************************************************************
Copyright 2003 by the author, Susan M. Behuniak.