William & Mary Law Review


Serena Mayeri


In the standard account, American sex equality law rests on a partial and imperfect analogy to race, developed in the 1970s by feminists intent on establishing formal equality between men and women, and embraced, albeit selectively and uneasily, by lawmakers and judges. But this account, although containing important elements of truth, obscures the creative ways that advocates turned the tables, arguing that principles developed in sex equality jurisprudence could expand the availability of remedies for racial injustice. This Article explores one example of this phenomenon: efforts, led by Ruth Bader Ginsburg, to use the emerging constitutional distinction between detrimental and beneficial sex classifications as a precedent supporting and justifying the constitutionality of race-based affirmative action. Feminists faced a series of analogical crises in the mid-1970s, including the collision of "benign" sex classifications and race-based affirmative action in the Court, and the Justices' failure to see pregnancy discrimination as an equal protection violation. In response, feminists reformulated the race-sex analogy, attentive to differences as well as similarities between race and sex inequality. They also sought to apply their hard won gains in sex equality cases to the race context, arguing that the Court's openness to "genuine affirmative action" for women should extend to racial minorities. The narrow failure of this strategy to win a Court majority had lasting consequences, including a problematic divergence between race and sex equality doctrines and the submergence of gender, work, and family issues in the affirmative action debate. The reconstructed analogy she developed as an advocate, however, remains alive in Justice Ginsburg's jurisprudence, and recovering its history suggests the need for a reassessment of both legal feminist advocacy and constitutional equality law.