I am grateful to Valery Garrett and Daniel Gomes for research assistance and to Hugh Graham and Laura Kalman for helpful suggestions. I owe a special debt to Joan Williams and Martha Chamallas who attempted to save me from mistakes in the legal sections. For any remaining inaccuracies, I am, of course, responsible.

1. For a fuller discussion of opposition to the ERA, see my “Gender on the Right: Meanings Behind the Existential Scream,” Gender and History 3 (Autumn 1991)Google Scholar; also Mathews, Donald G. and De Hart, Jane Sherron, Sex, Gender, and the Politics of ERA: A State and the Nation (New York, 1990), chaps. 2, 6–8.Google Scholar

Unless otherwise noted, Part I of this essay is based on interviews with opponents of ERA, broadsides and information sheets disseminated by STOP ERA and other anti-ERA groups in North Carolina (in author's files, some of which have been turned over to the University of North Carolina at Greensboro, or in the papers of all persons mentioned in this note), extensive correspondence to the chief opponent of ERA in the U.S. Senate, Samuel J. Ervin in the Southern Historical Collection (hereafter SHA), University of North Carolina at Chapel Hill, as well as the extensive collection of letters and published document in the ERA Collection, North Carolina Department of Archives and History (hereafter NCDAH). Included in the NCDAH collection are the papers of the following North Carolina legislators: Representatives]. Allen Adams, A. Heartwell Campbell, David H. Diamont, Peter W. Hairston, Edward S. Holmes, Robert B. Jones, Margaret Keesee, Larry E. Leonard, Ernest B. Messer, Robie Nash, Ned R. Smith, and Margaret Tennille. To allow for a degree of anonymity agreed upon at the time of the interviews, quotations from interviews are not cited. For a full list of interviews, see Mathews and De Hart, Sex, Gender, and the Politics of ERA, app. 4.

2. For the initial quotation, see Violet S. Devieux to Senator Sam J. Ervin, Jr., 23 March 1972, Samuel J. Ervin Papers, #3847 SHA. The plea not to “desexigrate” was made at hearings held on 11 March 1975 by the North Carolina General Assembly, at which the author was a participant observer. For arguments against a state ERA in Massachusetts, see the following sample from Massachusetts newspapers, Scoledge, Frances, “Vote No,” Amesbury News, 15 September 1976Google Scholar; “Our Readers Write,” Mefrose Evening News, 2 August 1976; Amherst Record, 15 September 1976; Lawrence Eagle-Tribune, 14 September 1976; Boston Pilot, 9 July 1976; Lynn Sunday Post, 17 October 1976.

3. Schlafly's arguments are elaborated in Schlafly, Phyllis, The Power of the Positive Woman (New York, 1977)Google Scholar. The symbolic significance of both conferences for opponents was evident to participant observers at the Houston meeting and at the pro-family conference in Washington, which was called to counter the White House Conference on Families. See copies of notes of Roxie Nicholson and Donald Mathews, in possession of the author. See also Klatch, Rebecca, Women of the Right (Philadelphia, 1987), 122–27.Google Scholar

4. Lois J. Watkins to Representative Margaret Kessee, 24 February 1973, copy, author's files (now at the university of North Carolina at Greensboro).

On the occupational status as well as the ideological and political orientation of anti ERA activists, see, for example, Arrington, Theodore S. and Kyle, Patricia A., “Equal Rights Activists in North Carolina,” Signs 3 (1978): 660–80CrossRefGoogle Scholar; Tedin, Kent L., “Religious Preferences and Pro/Anti Activism on the Equal Rights Amendment Issue,” Pacific Sociological Review 21 (1978: 55–67CrossRefGoogle Scholar; Mueller, Carol and Dimieri, Thomas, “The Structure of Belief Systems Among Contending ERA Activists,” Social Forces 60 (1982): 657–73CrossRefGoogle Scholar; Himmelstein, Jerome L., “The Social Basis of Antifeminism: Religious Networks and Culture,” Journal of the Scientific Study of Religion 25 (1986): 1–15CrossRefGoogle Scholar. For anti-ERA sentiment among the general public, see Burris, Val, “Who Opposed the ERA? An Analysis of the Social Basis of Antifeminism,” Social Science Quarterly 64 (1983): 305–17Google Scholar; Huber, Joan, Rexroat, Cynthia, and Spitze, Glenna, “A Crucible of Opinion on Women's Status: ERA in Illinois,” Social Forces 57 (1978): 549–65CrossRefGoogle Scholar. According to poll data from the Institute for Research in the Social Sciences at the University of North Carolina at Chapel Hill, “Survey of North Carolina Women” (1978), women in the workforce most likely to oppose ERA were those holding either blue- or pink-collar jobs.

5. Wicker, Tom, “One Voice, In Retreat,” New York Times, 22 April 1983, sec. I, p. 31.Google Scholar

6. The characterization of the policy reversal as a “sea change” was made by Morris B. Abram, vice-chairman of the Civil Rights Commission. See Pear, Robert, “Civil Rights Agency Splits in Debate on Narrowing Definition of Equality,” New York Times, 14 October 1985, sec. I, p. 17.Google Scholar

7. Title IX, by banning sex-based discrimination in educational institutions, allowed women to secure the necessary credentials for employment; Title VII banned sex-based discrimination in employment; the Equal Pay Act mandated equal pay for the same work.

8. Equal Employment Opportunities Commission v. Sears, Roebuck & Co., 628 F. Suppl. 1264, U.S. District Court for the Northern District of Illinois, 1986. The judge was John A. Nordberg. While the initial accounts of journalists and scholars focused on the expert witnesses and their testimony, subsequent accounts, whether by historians, political scientists, or legal scholars, emphasize the relationship of difference and inequality. See, for example, Scott, Joan W., “Deconstructing Equality-Versus-Difference: Or, the Use of Poststructuralist Theory for Feminism,” Feminist Studies 14 (1988): 33–48CrossRefGoogle Scholar; Eisenstein, Zillah R., The Female Body and the Law (Berkeley and Los Angeles, 1988), 110–16Google Scholar; Littleton, Christine A., “Equality and Feminist Legal Theory,” University of Pittsburgh Law Review 48 (1987): 1043–59Google Scholar; and Minow, Martha, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, N.Y., 1990), 70–75.Google Scholar

9. Taylor, Stuart Jr., “Supreme Court, 6–3, Extends Preferences in Employment for Women and Minorities,” New York Times, 26 March 1987, sec. 1, p. 1.Google Scholar

10. Kamen, Al, “Supreme Court Upholds Affirmative Action Hiring,” Washington Post, 26 March 1987, sec. 1, p. 1Google Scholar; Savage, David G., “Landmark Ruling Upholds Job Preferences for Women,” Los Angeles Times, 26 March 1987, sec. I, p. 10Google Scholar; Taylor, “Supreme Court, 6–3, Extends Preferences in Employment for Women and Minorities.” For a much fuller treatment of the case, see Urofsky, Melvin I., A Conflict of Rights: The Supreme Court and Affirmative Action (New York, 1991).Google Scholar

11. Johnson v. Transportation Agency, 107 S. Ct. 1442, 1475 (1987).

12. Kamen, Al, “Court Upholds Pregnancy Leave Laws,” Washington Post, 14 January 1987, sec. A, p. 1Google Scholar; Savage, David G., “Justices Uphold Pregnancy Leave,” Los Angeles Times, 14 January 1987, sec. I, p. 11Google Scholar; Taylor, Stuart Jr., “Job Rights Backed in Pregnancy Leave,” New York Times, 14 January 1987, sec. A, p. 1.Google Scholar

13. California Federal Savings & Loan Association v. Guerra, 107 S. Ct. 683.

14. International Union, United Automobile, Aerospace, and Agricultural Implements Workers of America v. Johnson Controls, Inc. 886 F. 2d 898, U.S. Court of Appeals for the Seventh Circuit (1989).

15. International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America v. Johnson Controls, Inc. 111 S. Ct. 1196 (1991). Although all nine justices agreed that Johnson Controls' policy violated the Civil Rights Act of 1964, the Court divided over the BFOQ; a majority agreed with Blackmun's narrow interpretation of the BFOQ, while the more conservative minority argued for a broader interpretation that would allow employers greater leniency.

16. For an account of the positions of various members of the Court, see Urofsky, A Conflict or Rights, 154–74.

17. Wimberly v. Labor & Industrial Relations Commission 107 S. Ct. 821 (1987).

18. Gillespie, Veronica M. and McClinton, Gregory L., “The Civil Rights Restoration Act of 1987: A Defeat for Judicial Conservatism,” National Black Law Journal 12 (Spring 1990): 65–66.Google Scholar

19. Luker, Kristin, Abortion and the Politics of Motherhood (Berkeley and Los Angeles, 1984), 120Google Scholar. An excellent outline of the varying goals of the groups that coalesced around legalization of abortion is provided in Epstein, Lee and Kobylka, Joseph F., The Supreme Court and Legal Change: Abortion and the Death Penalty (Chapel Hill, 1992), 145Google Scholar. See Roe et al. v. Wade, 93 S. Ct. 705 (1973).

20. For an account of the road from Roe to Webster, including discussion of the Hyde Amendment banning Medicaid funding of abortions for poor women, which was upheld by the Supreme Court in Harris v. McRae (1980), see Epstein and Kobylka, The Supreme Court and Legal Change, 203–98.

21. Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989) 3067. (Emphasis added.)

22. Casey v. Planned Parenthood of Southeastern Pennsylvania, U.S. (1992). Greenhouse, Linda, “High Court, 5–4, Affirms Right to Abortion but Allows Most of Pennsylvania's Limits,” New York Times, 30 June 1992Google Scholar; Marcus, Ruth, “Supreme Court Declines to Overrule Roe,” Washington Post, 30 June 1992.Google Scholar

23. Zall, Milton, “What to Expect from the Civil Rights Act,” Personnel Journal (March 1992): 50Google Scholar; Ross, Julia C., “New Civil Rights Act,” ABA Journal 78 (January 1992): 85Google Scholar; Benton-Powers, Susan M., “Sexual Harassment: Civil Rights Act Increases Liability,” HR Focus 69 (February 1992): 10Google Scholar; Smith, Bob, “The Burden of Proof Grows Heavier,” HR Focus 69 (February 1992): 1–2.Google Scholar

24. Other provisions of the act included a federal “glass ceiling” commission to study factors inhibiting women and minorities from achieving high corporate positions. I am grateful to Martha Chamallas for pointing out the impact of the Civil Rights Act of 1866.

25. The Family and Medical Leave Act, which provides job protection for employees needing time off for family and medical emergences, was signed by Clinton during his first month in office. Other measures include the Women's Health Equity Act and the Economic Equity Act, both omnibus measures, portions of which have already been enacted.

26. The difficulty of getting a new amendment through Congress unencumbered by restrictions proved impossible in the 1980s. See Berry, Mary Frances, Why ERA Failed: Politics, Women's Rights, and the Amending Process of the Constitution (Bloomington, 1986), 101–9Google Scholar. The possibility of “clean” Freedom of Choice Act is likely to prove as difficult.

27. Most feminists, whatever their reservations about the amendment, ultimately rallied behind ERA inasmuch as it became symbolic of feminism for both feminists and antifeminists during the ratification struggle. Radical feminists, however, had never equated rights-based equality with the kind of transformation in male-female relations they believed necessary; therefore, they found little rethinking of positions necessary. For a scholarly critique not just of ERA but of “legal liberalism” in general and the gendered inequalities that the juridical equality of women masks, see Hoff, Joan, Law, Gender, and Injustice: A Legal History of U.S. Women (New York, 1991).Google Scholar

28. Dailey, Anne C., “Feminism's Return to Liberalism,” Yak Law Journal 102 (1993): 1266Google Scholar. In arguing, as does Dailey, that feminist legal scholars would by the 1990s “return to liberalism,” it is not my intent to ignore the very different approaches that reside within contemporary feminist jurisprudence or to imply that all fit comfortably within a “redeemed” liberalism. How to characterize those various approaches is itself a matter of disagreement. “Liberal,” “cultural,” “dominance,” and “postmodernist” are labels often employed. Although I subsequently cite authors associated with each approach, an extensive discussion of each is beyond the scope of this essay.

29. Williams, Patricia J., The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge, Mass., 1991), 164–65Google Scholar. Williams's comment, which was made with respect to African-Americans, is applicable to white women, as my study of ERA supporters demonstrates. See Mathews and De Hart, Sex, Gender, and the Politics of ERA, chaps. 3–5.

30. For an introduction to the critical legal studies movement, see Gordon, Robert, “New Developments in Legal Theory,” in Kairys, David, ed., The Politics of Law: A Progressive Critique (New York, 1982)Google Scholar; also Hutchinson, Allan, ed., Critical Legal Studies (Totowa, N.J., 1987).Google Scholar

31. For a discussion of the use of deconstructive methodology in legal scholarship in general, see Norris, Christopher, “Law, Deconstruction, and Resistance to Theory,” Journal of Law and Society 15 (1988)CrossRefGoogle Scholar. Use of deconstructive methodology by feminist legal scholars is evident in the work of Martha Minow and Marie Ashe, for example. See Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, N.Y., 1990)Google Scholar; also Ashe, Marie, “Law-Language of Mathernity: Discourse Holding Nature in Contempt,” New England Law Review 22 (1988): 521–59Google Scholar. The quote is that of Scott, Joan, “Women's History,” in Burke, Peter, ed., New Perspectives on Historical Writing (University Park, Pa., 1991), 57–58Google Scholar. Scott is perhaps the best example of a historian who employs poststructuralism as a more radical epistemology than Marxism from which to analyze structures, institutions, and, indeed, theory itself. See her application of poststructural analysis to equality doctrine and the Sears case in “Deconstructing Equality vs. Difference.”

32. A few feminists were part of the early critical legal studies movement (CLS) and contributed to Kairys's classic collection of essays. See, for example, Nadine Taub and Elizabeth Schneider, “Perspectives on Women's Subordination and the Role of Law,” and Diane Polan, “Toward a Theory of Law and Patriarchy,” both in David Kairys, ed., The Politics of Law, 117–38. While some feminist legal scholars have remained within the movement, others, such as Patricia Williams and Elizabeth Schneider, have expressed reservations over the extent of the CLS attack on rights. Williams took issue with the CLS preference for “needs” over “rights,” arguing that the former may be appropriate for whites but not for blacks. African Americans have found in rights a political mechanism, Williams argues, that can confront the historical denial of need. Schneider takes a similar tact, acknowledging the limitations of rights discourse to achieve fundamental social change. Yet rights, she insists, have played an important symbolic and political role in the women's rights movement and must remain an essential part of any legal and political strategy. See Williams, Patricia J., “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights,” Harvard Civil Rights—Civil Liberties Law Review 22 (1987): 418Google Scholar; and Schneider, Elizabeth M., “The Dialectic of Rights and Politics: Perspectives from the Women's Movement,” New York University Law Review 61 (1986): 589–652.Google Scholar

33. Particularly influential for some feminist legal critics is Carol Gilligan's work on moral theory. Gilligan's description of a female ethic of care and a male ethic of justice made In a Different Voice (Cambridge, Mass., 1982)Google Scholar a seminal work that has generated an extensive literature, some of it highly critical. See, for example, Kerber, Linda K. et al. , “On In a Different Voice: An Interdisciplinary Forum,” Signs 11 (1986): 303–33Google Scholar; and also Nummer-Winkler, Gertrude, “Two Moralities? A Critical Discussion of an Ethic of Care and Responsibility Versus an Ethic of Right and Justice,” in Kurtines, William W. and Gewirtz, Jacob L., eds., Morality, Moral Behavior, and Moral Development (New York, 1984): 348–61Google Scholar. Legal scholars such as Robin West, Lucinda Finley, and Katharine T. Bartlett, borrowing from Gilligan, seek to integrate a female ethic of care into the law in a variety of areas. See West, Robin, “Jurisprudence and Gender in Feminist Legal Theory,” University of Chicago Law Review 55 (1988): 1–72CrossRefGoogle Scholar; Finley, Lucinda, “Transcending Equality Theory: A Way Out of the Maternity and Workplace Debate,” 86 Columbia Law Review (1986): 1118–80CrossRefGoogle Scholar; Bartlett, Katharine T., “Re-Expressing Parenthood,” Yale Law Journal 98 (1988): 293–340CrossRefGoogle ScholarPubMed. Other legal scholars, such as Joan Williams, are critical of Gilligan, arguing that she is attempting to attribute to women two influential critiques of contemporary Western culture: one a critique of traditional Western epistemology and the other a critique of possessive individualism. See Williams, , “Deconstructing Gender,” Michigan Law Review 87 (1989): 798–845.CrossRefGoogle Scholar

34. The feminist critique of liberal theory is extensive and focuses on both the absence or subordination of women in political theory and the gendered structure of the societies in which the theorists lived. A partial list of early critics includes: Okin, Susan Miller, Women in Western Political Thought (Princeton, 1979)Google Scholar; Elshtain, Jean Bethke, Public Man, Private Woman: Women in Social and Political Thought (Princeton, 1981)Google Scholar; and Clark, Lorenne M. G., “Women and John Locke: Who Owns the Apples in the Garden of Eden?” in The Sexism of Social and Political Theory: Women and Reproduction from Plato to Nietzsche, ed. Clark, Lorrene M. G. and Lange, Lynda (Toronto, 1979)Google Scholar. See also Pateman, Carole, The Sexual Contract (Stanford, Calif., 1988)Google Scholar, and Pateman, Carole and Gross, Elizabeth, eds., Feminists Challenges: Social and Political Theory (Boston, 1987).Google Scholar

35. Minow, Making All the Difference, 147. For an introduction to the British version of this debate, see Kingdom, Elizabeth, What's Wrong with Rights? Problems for Feminist Politics of Law (Edinburgh, 1991).Google Scholar

36. See, for example, Wolgast, Elizabeth H., Equality and the Rights of Women (Ithaca, N.Y., 1980)Google Scholar. chap. 1; also idem, The Grammar of Justice (Ithaca, N.Y., 1987), 39.

37. See note 29 for a partial listing. Feminists were not the only political theorists critical of the individualism of liberal theory. See MacPherson, Crawford B., The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford, 1962).Google Scholar

38. For an example of the early criticism of liberalism emphasizing affiliative values, see Elshtain, Jean Bethke, “Antigone's Daughters,” Democracy 2 (1982): 46–59Google Scholar. For more recent critiques, see Elshtain, , Power Trips and Other Journeys: Essays in Feminism as Civic Discourse (Madison, 1990)Google Scholar; Fox-Genovese, Elizabeth, Feminism Without Illusions: A Critique of Individualism (Chapel Hill, 1991)Google Scholar; also Wolgast, Grammar of Justice, 25–27. Both Elshtain and Fox-Genovese, who consider themselves feminists, equate contemporary feminism with individualism and the striving of elite women for male-defined success in patriarchical institutions. Their emphasis on traditional institutions (family for Elshtain, community for Fox-Genovese) is shared by many antifeminists.

On the “female” ethic of care and responsibility versus the “male” ethic of right, see the discussion of Gilligan and her influence on feminist legal scholars in note 31.

39. See Minow, Making All the Difference, 147. The same point is made by others, especially Rhode, Deborah L., Justice and Gender: Sex Discrimination and the Law (Cambridge, Mass., 1989)Google Scholar; also Christine A. Littleton, “Equality and Feminist Legal Theory.”

40. Minow, Martha, “The Supreme Court 1986 Term Forward: Justice Engendered,” Harvard Law Review 101 (1987): 12–15.CrossRefGoogle Scholar

41. Pole, J. R., The Pursuit of Equality in American History (Berkeley and Los Angeles, 1978), 293–94.Google Scholar

42. See, for example, Royster Guano, 253 U.S., 415 (“[T]he classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”) While significant gains have flowed from this concept, the limitations of equality analysis soon became apparent to feminist legal scholars, as I shall demonstrate. In Canada, the “similarly situated” test has been rejected as deficient for producing equality, the Supreme Court noting that it would have justified the formalist separate-butequal doctrine of Plessy v. Ferguson. See MacKinnon, Catharine A., “Reflections on Sex Equality Under Law,” The Yale Law Journal 100 (1991): 1281–1328, esp. n. 67.CrossRefGoogle Scholar

43. Black feminist scholars have long been sensitive to the problem of gaining recognition of and relief from oppression occasioned by multiple forms of difference. See, for example, Crenshaw, Kimberle, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics,” in Bartlett, Katharine T. and Kennedy, Rosanne, eds., Feminist Legal Theory: Readings in Law and Gender (Boulder, Colo., 1991), 57–80.Google Scholar

44. Although there are many varieties of feminism, participants in the contemporary feminist movement in the United States are usually grouped into three categories: liberal, radical, and cultural or relational. In the early stages of the movement, the division was predominantly between radical and liberal feminists, often referred to as women's liberationists and women's rights advocates, respectively. Liberal feminists believed that equality could be achieved by bringing women into the public sphere and providing them with equal rights. Radical feminists insisted that women's inequality in the public domain had its roots in their subordination in the family and that equality required not merely the sexual integration on mainstream institutions, but a radical transformation of cultural values. Both, however, emphasized that gender was socially constructed. Cultural/relational feminists, who had superseded radical feminists by 1975, chose instead to emphasize male/female difference, whether biologically or socially constructed, and to valorize the female. By focusing on personal rather than social transformation, they functioned more as a counterculture than as agents of political change. For an overview of the contemporary feminist movement, see my essay “The New Feminism and the Dynamics of Social Change,” in Kerber, Linda K. and De Hart, Jane Sherron, eds., Women's America: Refocusing the Past (New York, 1991), 493–521Google Scholar. On the shift from radical feminism to cultural feminism, see Echols, Alice, Daring to Be Bad: Radical Feminism in America, 1967–1975 (Minneapolis, 1989).Google Scholar

45. For the emerging views of key women's advocates on these issues in the 1960s, see Harrison, Cynthia, On Account of Sex: The Politics of Women's Issues, 1945 to the 1960s (Berkeley and Los Angeles, 1988)Google Scholar. For an important early statement on legal classification of sex as over classification, see Eastwood, Mary O. and Murray, Pauli, “Jane Crow and the Law: Sex Discrimination and Title VII,” George Washington Law Review 34 (1965): 232–65.Google Scholar

46. Brown, Barbara A., Emerson, Thomas I., Falk, Gail, and Freedman, Ann E., “The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women,” Yale Law Journal 80 (1971): 871–985CrossRefGoogle Scholar. For the extent to which both pro and anti-ERA supporters regarded the Emerson article as definitive, see Mathews and De Hart, Sex, Gender, and the Politics of ERA, 44–50. The legal expression of this approach, which was modeled on antidiscrimination doctrine developed in conjunction with race, is evident in sexdiscrimination cases argued in the 1970s by Justice Ruth Bader Ginsburg.

47. Harrison, On Account of Sex, 198–207.

48. See Scott, “Deconstructing Equality.” Joan Williams argues that the defense's use of difference allowed Sears's lawyers, with Judge Nordberg's help, to enshrine gender stereotypes at the core of Title VII in ways that constitute a “dramatic reversal of existing Title VII law.” See Williams, “Deconstructing Gender,” 819. For a related argument that attempts to move judges beyond explanations of either women's choice or employers' coercion, see Schultz, Vicki, “Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument,” Harvard Law Review 103 (1990): 84–131.CrossRefGoogle Scholar

49. Taub, Nadine and Williams, Wendy W., “Will Equality Require More than Assimilation, Accommodation, or Separation from the Existing Social Structure? Rutgers University Law Review 37 (1985): 833–35Google Scholar; also Williams, Wendy W., “Equality's Riddle: Pregnancy and the Equal Treat–Special Treatment Debate,” New York University Review of Law and Social Change 13 (1985): 325–80.Google Scholar

50. Minow, Martha, “The Supreme Court 1986 Term—Leading Cases,” Harvard Law Review 101 (1987): 326–27.CrossRefGoogle Scholar

51. For an incisive comparison of the two cases, see Minow, “Supreme Court 1986 Term Forward: Justice Engendered,” 41–43.

52. MacKinnon is especially eloquent on this point in her “Reflections on Sex Equality Under Law,” in which she develops the argument for reproductive control and abortion as sex equality issues.

53. MacKinnon, Catharine A., Toward a Feminist Theory of the State (Cambridge, Mass., 1989), 238Google Scholar. See also her earlier article, “Feminism, Marxism, Method, and the State: An Agenda for Theory,” Signs 7 and 8 (1982–83): 515–44, 635–58.

54. West rejects both liberal legalism and critical legalism as “masculine” and, following the lead of Gilligan, attempts to construct a feminist jurisprudence based on female connectedness and lived experience. See West, Robin, “Jurisprudence and Gender,” University of Chicago Law Review 55 (1987): 81–145.Google Scholar

55. The theories of feminist jurisprudence associated with MacKinnon and West, though recognized as powerful and incisive, are vulnerable to criticism on a variety of grounds. Some scholars reject the gender essentialism embodied in the thought of both. They point out that MacKinnon, in emphasizing the pain and suffering of female subordination exemplified in rape, and West, in stressing the joy of female connectedness to others through such biologically based activities as pregnancy, breastfeeding, and heterosexual intercourse, rest their analysis on an assumption of fundamental sexual difference. Critics such as Drucilla Cornell point to the totalizing and reductive consequences of such assumptions and, in the case of MacKinnon, the extent to which the logic leads to a reversal rather than a displacement of gender hierarchy. African-American legal scholars such as Angela Harris are understandably critical of how notions of women's “true nature,” combined with the failure to examine how hierarchies of difference interact, serve to marginalize women of color. See Harris, Angela P., “Race and Essentialism in Feminist Legal Theory,” Stanford Law Review 42 (1990): 581–616CrossRefGoogle Scholar; also Cornell, Drucilla, Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law (New York, 1991), 4–78Google Scholar passim. (Cornell is more sympathetic to West, disagreeing with her approach but not with her conclusions.)

56. The issues raised by West and relational feminism are widely reflected in feminist legal scholarship. Note, for example, Marie Ashe's emphasis on the nature of the female bodily experience in pregnancy with respect to surrogacy in “Law of Maternity”; Finley's argument for supplementing rights analysis by incorporating responsibility into legal discourse concerning pregnant women in “Transcending Equality Theory”; and Leslie Bender's argument for recognition of relational as well as financial loss in tort law in “Feminist (Re)Torts: Thoughts on the Liability Crisis, Mass Torts, Power, and Responsibilities,” Duke Law Journal (1990): 848–912.

57. For a critique of West and other relational feminists for tossing out the proverbial baby with the bath water, in this instance liberal conceptions of autonomy and rights, see McClain, Linda C., “‘Automistic Man’ Revisited: Liberalism, Connection, and Feminist Jurisprudence,” Southern California Law Review 65 (1992): 49–109. I am grateful to Joan Williams for calling the McClain article to my attention.Google Scholar

58. See, for example, Schneider, “Dialectic of Rights and Politics”; Patricia Williams, “Alchemical Notes”; Crenshaw, Kimberle Williams, “Race, Reform, and Retrenchment,” Harvard Law Review 101 (1988): 1366–69.CrossRefGoogle Scholar

59. Rhode, Deborah, “Feminist Critical Theories,” Stanford Law Review 42 (1990): 617–38CrossRefGoogle Scholar. Subsequent quotations in this paragraph, unless otherwise noted, are also from this article.

60. Williams, The Alchemy of Race and Rights, 164–65; Minow, Martha, “Rights for the Next Generation: A Feminist Approach to Children's Rights,” Harvard Women's Law Journal 9 (1986): 1Google Scholar, 24; Schneider, “Dialectic of Rights and Politics,” 648–52.

61. In concurring with Rhodes's overall assessment, I recognize that this reading is not the only one that can be made of feminist legal theory. For an alternative reading far more sympathetic to the cultural feminism of West, see Hoff, Law, Gender, and Injustice, 350–75.

62. It is this shifting anti-essentialist perspective associated with postmodernism that many feminist scholars find to be the most promising approach.

63. The question is essentially MacKinnon's. I have adapted the paraphrased version posed by Sylvia Law in another context. See Law, Sylvia A., “Rethinking Sex and the Constitution,” University of Pennsylvania Law Review 132 (1984): 955–1040CrossRefGoogle Scholar, esp. 968. In commenting on the debate over abortion and “working” mothers, Joan Williams makes the same point. See her “Gender Wars: Selfless Women in the Republic of Choice,” New York University Law Review 66 (1991): 1163–64Google Scholar. See also Minow, Making All the Difference.

64. See note 13.

65. Minow, “The Supreme Court 1986 Term Forward: Justice Engendered,” 13.

66. Minow, Making All the Difference, 16, 374.

67. The assessment, that of California union officials involved in the Johnson case, is quoted in Urofsky, A Conflict of Rights, 188.