"A Common Fate of Discrimination": Race-Gender Analogies in Legal and Historical Perspective
Mayeri, Serena, The Yale Law Journal
In her classic work Ain't I a Woman, African-American feminist critic bell hooks excoriated white feminists for their "constant comparison[s] of the plight of `women' and `blacks,'"(1) charging that such analogies "support the exclusion of black women"(2) and represent the linguistic expression of a "sexist-racist attitude"(3) endemic to the women's liberation movement. Hooks, writing in the early 1980s, perceived analogies between racial and sexual oppression--at least as articulated by white women who "used black people as metaphors"(4)--as a quintessentially opportunistic, parasitic, and marginalizing practice.
Two decades earlier, when civil fights attorney Pauli Murray, already a veteran of battles against racial and sexual exclusion, was searching for a means of persuading skeptics that the eradication of "Jane Crow" deserved moral commitment and legal mobilization equivalent to the fight against "Jim Crow," she had emphasized the "strikingly similar positions in American society" of "women and Negroes."(5) Invoking the "parallel and interrelated" histories of women's fights and civil fights movements, Murray articulated an analogy that superficially resembled the very comparison hooks would later condemn.
Powerful political and legal imperatives shaped Murray's decision to invoke an analogy between race and sex in the early 1960s. In so doing, she deliberately and self-consciously adopted a long tradition within feminist advocacy traceable to the genesis of the antebellum woman's fights struggle in the crucible of antislavery activism. She also acted on the strong legal impulse to justify the application of old principles to new circumstances through analogical reasoning. The analogical arguments advanced by Murray and others would have a profound impact on the development of antidiscrimination law in both its legislative and its constitutional incarnations, an impact that continues to be felt today.
As the juxtaposition of hooks's and Murray's words suggests, the political connotations of analogies between race and sex are highly context-dependent and historically variable. As this Note will show, changing historical conditions render the legal ramifications of analogical arguments equally protean, with momentous consequences for both feminism and antiracism. Following a conceptual introduction to analogical argumentation and civil rights advocacy in Part I, Part II investigates the particular historical context of the 1960s in which race-sex analogies emerged as a central component of modern feminist legal thought. The transformation of the social meaning and legal consequences of analogical arguments in 1970s constitutional jurisprudence is the subject of Part III. In order to suggest the continuing relevance of this history to today's civil rights and feminist agendas, Part IV discusses the trajectory of race-gender analogies in the recent debate over the Violence Against Women Act's civil rights remedy. Finally, Part V provides some concluding remarks about the historical dynamics of analogical arguments.
I. ANALOGICAL ARGUMENTS AND CIVIL RIGHTS ADVOCACY
Analogical arguments, common in legal reasoning generally,(6) are a staple of civil rights advocacy, where established claims of inequality and injury serve as a template upon which individuals and groups assert new claims and demand new remedies.(7) Analogies have both political and legal currency: They can inspire empathy and understanding of harms previously unrecognized, and they may be desirable, if not necessary, in an adjudicative system based upon fidelity to precedent. Analogical arguments not only dominate equal protection jurisprudence, but also play a crucial role in the construction and legitimation of legislative remedies for discrimination and violence against subordinated groups. In American antidiscrimination law, race--in particular, the legal response to the African-American experience of racial subordination--is both the source of Americans' political imagination about the nature and scope of equal rights protection, and the legal baseline against which new rights claims are measured. …