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Equality is, to be sure, an elusive concept. More often than not, we find it much easier to describe what is unequal (we know it when we see it) than affirmatively to explain equality. This definitional dilemma rises to new heights when courts, in exercising their interpretive legal functions, have to provide all persons the equal protection of the laws."
Over the course of American history and jurisprudence, the Supreme Court itself has a checkered past when it comes to judicial application of rights to equality. In the beginning, there was slavery - the quintessence of unequality - and the consequent denial of human status to an entire race of people forcibly brought to this country. Subsequently, equal protection was born (at least on paper) in the Civil War Amendments which purported to confer to freed slaves their constitutional rights as United States citizens and as persons, including the equal protection of the laws. Plessy v. Ferguson effectively relegated this equality right to second-class citizenship by declaring the constitutionality of the separate but equal doctrine. Today, the Court continues to grapple with (and balk at) the challenges of defining and securing real equality for at least some of those who ostensibly comprise "We the people."
The Supreme Court is not alone in its attempts to ascertain the meaning of true or "real" equality. For example, Professor Carrie Menkel-Meadow suggests that there are three different approaches to constitutional equality: neutral equality, special treatment and recognizing/accommodating differences. Neutral equality is encapsulated in the legal phrase, "treating similarly situated people similarly." However, such a formulation does not always yield neutral results. As Catherine MacKinnon points out, in the context of gender where men and women are often posited as dissimilar, "sex equality thus becomes a contradiction in terms, something of an oxymoron..." Other feminist scholars have struggled with the issues and conflicts associated with legal, social and practical definitions of equality, resulting in what Professor Mary Becker describes as formal equality (i.e., neutral equality) and three alternative strands: Catherine MacKinnon's dominance approach, which focuses on women's subordination (women's unequality); Robin West's hedonic theory which proposes that women aim for greater subjective well-being; and Margaret Radin's pragmatic view that women should use whatever approach works. The very fact that one concept-equality-can result in a multiplicity of strands, approaches and definitions, creates more than the appearance that a "jurisprudence of doubt" might well be in the making.
Any consideration of "what is equality?" must incorporate the realization that the various definitions indicate, and are in fact predicated upon, factors that may be inimical to the very notion of equality, e.g., cultural bias and prejudice. One of the central problems evident in any of these analytical constructs is that equality requires a comparative context that posits the question "equal to what?" Such contextualized inquiry presumes a normative model as a comparison to which all else is evaluated and valued. By definition, the normative model becomes the signpost for normalcy and results in those people and paradigms fitting the model being more equal than those others who deviate from the established norm. Such reliance on the primacy of normativity is particularly troubling when the framework for equality jurisprudence is a society as diverse as the United States.
Berta Esperanza Hernández-Truyol, Virtual Equality as Constitutional Reality: An Introduction, 11 St. John's J. Legal Comment. 1 (1995)