I must, at the outset, disclose my "multiple partiality" ... I have been an unconditional admirer of Justice Ginsburg and her jurisprudence since she was appointed to the Supreme Court of the United States
Since older, a fortiori our respective backgrounds as early career women in law offer a lot of similarity, and I was myself the second woman to sit on the Supreme Court of Canada
Further disclosure: Justice Ginsburg and I share a passion: opera and a fate (or is it a curse?)--dissents. Her vision of equality and, in particular, gender justice has inspired many. I am one of those
Gender justice is part and parcel of the much larger issue: that of equality.
A discussion about equality must start with the question: why is equality so important both for the law and the people? The answer for me is simple: inequality is injustice, it is the negation of human dignity
My own definition of gender equality is the "extraordinary" notion that women are human beings entitled to the same respect, consideration and opportunities as other members of society That definition applies, mutatis mutandis, to all those subject to discrimination by reason of their ethnicity, sexual orientation, religion, social status, etc. (1)
Justice Brennan said it this way: "Human relations are extremely complex" and "the law is there to serve ... the realization of man's ends, the ultimate and the 'immediate ... the realization of human dignity through full opportunity and the eradication of bias.'" (2)
Full opportunity for women is a theme that resonates more than once in Justice Ginsburg's jurisprudence. (3)
It does resonate also in the Canadian Supreme Court jurisprudence based on Section 15 of the Charter of Rights and Freedoms, which does not parallel the vague and laconic language of the Fourteenth Amendment of the United States Constitution guaranteeing all persons the right to protection under the law. Instead, it is clearly elicited in Section 15 of the Canadian Charter of Rights and Freedoms that:
15: (1) Every individual is equal before and under the law and has the fight to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability. (4)
I must add that Canadian women were obviously sensitive to the language of the equality provisions of the Charter and lobbied for broader language, for distinctions based on sex to be subject to a stringent review, and for inclusion of a general statement of equality between men and women. Their proposed wording was accepted and now forms part of Section 15(1) of the Charter. (5)
Contrary to the jurisprudence under the Fourteenth Amendment that had developed the "separate but equal" standard since Plessy v. Ferguson, (6) the Supreme Court of Canada rejected this approach and opted at the outset for a large and purposive interpretation of the Charter, adopting Lord Sankey's metaphor in the Person's Case (7) of a constitution as a "living tree," (8) which the Court reiterated as recently as December 22, 2011. (9)
I am aware that this metaphor does not make for unanimity among justices of the United States Supreme Court. Justice Breyer and Aharon Barak's controversial views on the role of the judge in a democracy, (10) as well as their references to foreign jurisprudence, (11) are not widely accepted (Justices Ginsburg and Breyer excepted). Canada has readily embraced such views without any controversy.
Many constitutions, particularly those of more recent vintage such as those of India, South Africa, and Canada, have used as their model the framework set out in the Universal Declaration (12) and international human rights conventions, (13) rather than the civil liberties model found in the United States Bill of Rights.
The Court, in its first decision under Section 15 of the Charter in Andrews v. …