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Against the Law

Do the new feminist theorists have a chance against the First Amendment, the Bill of Rights, and centuries of male-made legal precedent?

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"Studying domestic violence, rape, and pornography can get you really depressed," says Cynthia Bowman, a Northwestern University associate professor of law. "So this semester we decided to end each class with a reminder of things we can do.

"One of the students said that she had been in a crowded elevator at the Daley Center the other day. A guy pinched her. But instead of the usual response--acting like nothing had happened and hoping the ride would end soon--she turned around and said, quite loudly, 'What the fuck do you think you're doing, pinching me?'

"Of course everyone looked at her; she had to be willing to accept that. But then, when they all got off, everyone stared at him too. And he was mortified."

Bowman teaches law, not self-defense, but sometimes they're the same thing. Her latest project--a 65-page article for the Harvard Law Review on the street harassment of women--is both. In the past the law has not noticed that it's both common and intimidating for women alone in public to be propositioned, yelled at, and gestured at. Bowman explains why street harassment matters and looks for ways that women can use the legal system to stop it.

Her own story, as a graduate student at Columbia University in the late 1960s, is a piece of evidence that harassment matters. She based her choice of classes on whether it would be dark when they were over. During Columbia's 1968 political upheaval she stayed uninvolved because she was afraid to attend evening meetings. The fact that the campus was surrounded by police much of the time only made matters worse. The cops took out their resentment on the college women, "always making sexual remarks when you went by."

As a result, "I spent most of my years in New York reading in the isolation of my home. When I moved to Chicago in the early 1970s, however, I owned a car and could find parking relatively close to any destination. . . . I suddenly felt safe and thus free to attend meetings and to become politically involved. . . . For me, therefore, there is an intimate connection between the simple freedom to move about in public and the capacity to participate in the political process."

Bowman likes the way this subject gets people talking. It came up recently when a couple came over for dinner. The wife got interested and described several incidents of harassment. The husband asked, "What about the First Amendment?" In her article, Bowman answers: "There is no way to interpret expressions such as 'great tits' or 'fuck you,' in a one-on-one interaction between strangers, as political comments that contribute directly or indirectly to the general discourse about public affairs; these comments are nothing more than 'psychic assaults.'"

The feminist legal theory Bowman espouses is not accepted even by all feminists, let alone by all women. It often annoys men and appalls civil libertarians. Bowman and her like-minded colleagues do not ask to be treated "the same as men." Instead, they create consternation by pointing out that this very request takes for granted that man is the standard by which women are to be measured.

This radical approach to feminism has proved surprisingly potent in conservative times. In 1979 the movement's foremost thinker, Catharine MacKinnon, published her pioneering book Sexual Harassment of Working Women, in which she argued that sexual harassment should be treated as a form of sex discrimination, not simply as a series of assaults and batteries that mysteriously keep happening to women. ("Tort law," she wrote, "compensates individuals for injuries . . . ; the purpose of discrimination law is to change the society so that this kind of injury need not and does not recur.") In 1980, the U.S. Equal Employment Opportunity Commission ratified her view by adopting regulations against such harassment. In 1986, in the case Meritor Savings Bank v. Vinson, an 88.9-percent-male Supreme Court dominated by Republican appointees unanimously upheld the EEOC regulations' constitutionality. (Chief Justice William Rehnquist himself wrote the opinion.) And by the time of the Thomas-Hill hearings in the fall of 1991, everyone was talking about a subject that just 12 years earlier had been an obscure, newborn subspecialty in the legal academy.

But notoriety can also be distracting. Feminist legal theory is better known for angry controversies over pornography and sexual harassment than for its basic ideas. Such as Idea Number One:

Like the president, the pope, and Jesus Christ, the law is male--written by men, practiced by men, interpreted by men, enforced by men. Time out of mind it has served their interests in matters large and small. (Until the 19th century, in the Anglo-American tradition a married woman had no legal existence except in the person of her husband.) Today, the law still emphasizes what men see as common (false rape accusations) and ignores what they ignore ("Hey babe, lookin' good"). It does a much better job of protecting rich people from the government than of protecting poor people--mostly women and children--from rich people. Following the culture's lead, the law assigns little value to cleaning house and raising children, things that most women and few men do regularly. It applies generalized standards--"What would a reasonable person do?"--in which mostly male experience stands in for human experience. Although in theory law could focus on helping community members heal their relationships, in practice it mostly adjudicates individuals' competing claims for rights and money.

"Where was the male law born?" IIT Chicago Kent College of Law professor Linda Hirshman asked last October at a program sponsored by the American Bar Association Commission on Women in the Profession and the Chicago Bar Association Alliance for Women. In law schools, of course, she replied, adding that, "Like childbirth in 1975, law schools are mostly run by men whose idea of women's appropriate position is painful, abased, and certainly nothing we would have thought of for ourselves."

And the law's maleness is amazingly resilient. Most Supreme Court sex-discrimination-suit winners have been men. When the law does get reformed--no-fault divorce is a good example--the reform itself often serves to enrich the divorced man and impoverish the woman. In the name of "gender neutrality," it treats the two as equal, although they rarely are in fact. And this brings us to Idea Number Two:

The ERA approach--treating women "just like men," aka formal equality--is not enough. As University of Chicago law professor Mary Becker wrote in the 1987 Supreme Court Review, formal equality "cannot, for example, ensure that jobs are structured so that female workers and male workers are equally able to combine wage work and parenthood. Nor can it ensure that social security, unemployment compensation, and other safety nets are structured so as to provide for women's financial security as well as they provide for men's." Formal equality may even make things worse. "'Modern' judges," Becker adds, citing a Florida case, "tend to equalize the status of new fathers and new mothers despite the obvious disparity between their contributions to, and involvement with, the newborn."

There is a paradox here. The feminist legal theorists have benefited from the work of formal-equality feminists they now criticize. "We have the luxury of standing on their shoulders and saying we want more," acknowledges Northwestern law professor Jane Larson. "It was natural for feminism to start out by using equal-rights theory. It was familiar and it had served other disenfranchised groups well. But feminism emerges as itself when it follows its own path, separate from left and right, making them both mad."

One of the problems with equal-rights feminism, Larson thinks, is that some women--particularly those stuck in traditional sex roles--rightly find it threatening. "At least traditional sex roles implied a deal. Men were obligated to provide for women and children. I think women worry now. Their lives change, they find themselves where they never expected to be--divorced, supporting themselves alone--and they see that society is not supporting the institution of child-rearing. They say, 'We're going to be impoverished, prostituted, derided, abandoned. That's how society treats single mothers. No thank you very much, feminists.'

"That is the worst of both worlds. I have a lot of sympathy and understanding for women without the money and power to protect themselves in this transition. I know my interests as a relatively elite woman aren't always the same as theirs. That's why it's wise that feminism not be too theory-driven. . . . If a woman in a divorce needs alimony, I would not say that it's discrimination to give it to her. That's what 'equal rights' will get you."

The radicals' goal is not to erase every mention of gender from the law books. It's to bring about substantive equality--to see that women's needs are met as well as men's needs have been. The last sentence of MacKinnon's sexual-harassment book could be the movement's motto: "Women want to be equal and different, too."

OK, guys, I know what you're thinking: Damn, they want it both ways! They want pregnancy leave with guaranteed rehiring, but no fetal-protection laws to keep them out of certain jobs. They want child care, and an equal shot at tenure. They want us to be sensitive, and to carry the really heavy garbage cans too.

True, but so what? reply the radicals. Men have always had it both ways. "Virtually every quality that distinguishes men from women is already affirmatively compensated in this society," MacKinnon writes in Feminism Unmodified.

"Men's physiology defines most sports, their needs define auto and health insurance coverage, their socially designed biographies [i.e., no time off for child-rearing] define workplace expectations and successful career patterns, their perspectives and concerns define quality in scholarship, their experiences and obsessions define merit, their objectification of life defines art, their military service defines citizenship, their presence defines family, their inability to get along with each other--their wars and rulerships--defines history, their image defines god, and their genitals define sex. For each of their differences from women, what amounts to an affirmative action plan is in effect, otherwise known as the structure and values of American society."

From this standpoint, Bowman's article on street harassment is neither quirky nor an expression of hatred for men. It's just one more step in undoing that millennia-old affirmative-action plan.

In existing law, writes Bowman, the most promising recourse is for the woman to sue her harasser for common-law assault. This has been done, and sometimes it has even worked, but not often. Judges have been reluctant to impose damages for "mere words." They are even more reluctant to do so if the woman is not "of good character," or if the man says he meant no harm, or if the woman's fear was allegedly inappropriate as measured by the reactions of a "reasonable man." (Bowman even quotes one judge who worried that convicting a man of criminal harassment would run the risk of "criminalizing generally accepted behavior.")

That "reasonable man"--sometimes disguised as the "reasonable person"--is a traditional legal standard that has swamped many a feminist boat. It assumes that men and women see things similarly. But harassment is just one area where both scientific studies and common sense show that they don't. In one random-sample survey, 67 percent of men and only 17 percent of women said they would be flattered to be propositioned at work. Adds Bowman:

"Although the reasonable man may not be placed in apprehension of receiving a battery by a stranger yelling 'Hey, cunt,' the response of a reasonable woman may differ, because of her . . . realistic fears of rape. Although only a minority of harassment incidents may lead to an 'offensive touching,' a reasonable woman cannot know which will be the one, and thus must regard every encounter as potentially dangerous."

Bowman's article includes a proposed law defining street harassment and making it a misdemeanor. But she thinks that first offenders under the law should not be fined. Instead, they should be required to watch an educational video like the traffic courts' safe-driving movie: one that "attempts to alter the behavior of harassers by evoking empathy with their targets." After all, "the purpose of a street harassment ordinance, like that of a traffic regulation, is to make the streets safer for all citizens."

Though Bowman advocates new laws to protect women's freedoms, she does not agree with some of her more radical colleagues who consider the old laws useless. She thinks it's worth trying to make traditional legal concepts, assault for example, work for women in harassment cases. "Either way you'll win. Either you get more protection or you point out the ways in which these categories don't work to protect women."

The most publicized, and so far least successful project of feminist legal theory is to do to pornography what it has done to sexual harassment: first, to make it visible and discussable, and then to define it as sex discrimination.

"Pornography is one of the most vicious practices of woman-hating," writes N. Morrison Torrey, DePaul University associate professor of law, in a recent issue of the Southwestern University Law Review. "It tells us that we are just another hunk of meat, whether it be violent pornography such as a woman being shoved into a meat grinder or so-called nonviolent pornography such as a naked woman with "USDA Choice' stamped across her chest." Since this is a law journal, the source of each example is carefully footnoted. "Unfortunately, this misogyny masquerades variously as sex, as freedom of speech, and as love. While it is clear to me that pornography has no place in a democratic society that promises equality to all its citizens, the courts do not agree."

Torrey was not always such a crusader. After graduating from law school in 1979 she worked as a trial attorney, "defending management in labor and employment cases. I rationalized that I could accomplish more change from within, by affecting my clients' opinions. It was pure rationalization, just BS.

"I knew nothing of feminist legal theory at that time. Of course I was for formal equality. That was all I knew. I was a member of the ACLU. I thought that the discrimination in my life was because something was wrong with me. When the partners threw ice cubes down the front of my dress at the summer party, when they always commented on my appearance, I thought it was somehow my fault."

In 1986 she got a chance to teach at DePaul--and to do some reading. She says her three most important experiences in the last eight years have been reading MacKinnon's Feminism Unmodified, Deep Throat star Linda (Lovelace) Marchiano's Ordeal, and Andrea Dworkin's Woman-Hating. Torrey left the ACLU and began using her legal expertise to fight pornography and the practices she has found inextricably tied to it--child sexual abuse, prostitution, and rape.

The first legal battle on pornography had already been fought and lost by the time Torrey converted. In 1983, at the request of members of the Minneapolis City Council, MacKinnon and Dworkin drafted a pornography ordinance and set up public hearings on it. The ordinance was passed by the council and vetoed by the mayor. In 1984 Indianapolis enacted a similar ordinance: it defined pornography as explicit sex and subordination of women in any of several contexts, including women enjoying pain, humiliation, or being raped. Contrary to most media reports, it did not outlaw pornography or make it a crime. Instead it allowed victims to sue for damages (this is MacKinnon's summary) "when they are coerced into pornography, when pornography is forced on them, when they are assaulted because of specific pornography, and"--the most general and controversial provision--"when they are subordinated through the trafficking in pornography."

It is hard to doubt that pornography hurts women. When Chicago's Seventh Circuit federal appellate judge Frank Easterbrook wrote the opinion striking down the Indianapolis ordinance in the summer of 1985, he conceded the point. "We accept the premises of this legislation," wrote the Reagan-appointed jurist. "Depictions of subordination tend to perpetuate subordination. The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets."

Nevertheless the court held that free speech was more important. Under the Indianapolis ordinance, "speech that . . . presents women in 'positions of servility or submission or display' is forbidden no matter how great the literary or political value of the work taken as a whole. Speech that portrays women in positions of equality is lawful, no matter how graphic the sexual content. This is thought control. It establishes an 'approved' view of women, of how they may react to sexual encounters, of how the sexes may relate to each other. Those who espouse the approved view may use sexual images; those who do not, may not."

Since this defeat, the antipornography movement has moved into a guerrilla phase. Several federal district and appellate courts have held that explicit sexual images in the workplace make it hostile to women and thus contribute to sexual harassment. The U.S. Senate Judiciary Committee has approved a Pornography Victims Compensation Act, which would allow victims of pornography-induced crimes to sue for damages if the porn involved had already been declared legally obscene. The state of Illinois has had a similar law on the books since January 1990 but no one has used it yet. Heartened by these developments, Torrey has written of the "resurrection" of the antipornography ordinance.

To the American Civil Liberties Union, this is not a resurrection; it's the nightmarish return of the undead. The ACLU insists that there is no good reason to drag pornography out from under the free-speech umbrella. "I know it sounds like a cliche," says local ACLU staff counsel Jane Whicher, a feminist, "but it's true. Personally, I think many of the images in pornography are despicable. But as an organization we're committed to protect even the speech we hate. The ACLU has long opposed any regulations on speech, regardless of its message."

The ACLU is not quite as purist as this sounds. It rarely intervenes in libel suits, for instance, even though libel works much as the antipornography ordinance would, with the aggrieved party suing for civil damages in court.

But Whicher says that proposed antiporn laws are "much more pernicious" than libel laws because they extend liability in a new and frightening way. This is easiest to see in an example: If Bob Greene were to falsely, maliciously, and recklessly describe Mayor Daley as an arsonist child molester, Daley could sue Greene for libel and win. If then Greene's libel were to inspire a reader to try to assassinate Daley, Greene could not be sued for that. But if Greene were to write a pornographic column that inspired a rape, under the Indianapolis antipornography ordinance the victim could sue Greene for the rape.

Torrey replies that this lengthened liability is not all that unusual--manufacturers are regularly held to account in product liability cases, for instance--and that the link between pornography and conduct is closer than the one between libel and conduct anyway.

But Whicher's trump card is much less technical: the MacKinnon-Dworkin ordinance doesn't define pornography clearly enough. When the Supreme Court recently upheld another limitation on free speech--a law against electioneering at the polls--it emphasized that any content-based regulation of speech must be very specific. "These are extraordinary laws," says Whicher, "so the court requires very clear descriptions."

Torrey denies that the ordinance is vague. But its advocates find it difficult to come up with an example of an explicit sex scene that would not fall under it. Whicher thinks she knows one reason why: the ordinance's coauthor, Andrea Dworkin, "doesn't think that heterosexual intercourse denotes equality." In her 1987 book Intercourse Dworkin writes, "Whatever intercourse is, it is not freedom"; however she does allow the possibility that in some future society without rape, prostitution, or male dominance, it might come to denote sexual equality.

"I've heard some of my arguments dismissed as 'liberal feminism,'" says Whicher. "I don't know why that's bad or what it means." The pornography debate is bitter in part because it divides feminists. It's heavily, though not always accurately, publicized by the media for the same reason that aluminum companies closely follow the details of every proposed regulation on bauxite mining. And it is unproductive because neither side can quite imagine how the other could think as it does. They are arguing in different worlds.

"There is a belief that this is a society in which women and men are basically equals," writes MacKinnon, describing the ACLU world. "Room for marginal corrections is conceded, flaws are known to exist, attempts are made to correct what are conceived as occasional lapses from the basic condition of sex equality. Sex discrimination law has concentrated most of its focus on these occasional lapses. It is difficult to overestimate the extent to which this belief in equality is an article of faith for most people, including most women." In such a world, she implies, it would make sense to say--as Judge Easterbrook does--that the best remedy for evil speech (such as porn) is more speech. If social equality is the norm, then the abstract formal equality of the First Amendment should, in the long run, help both men and women.

But, writes MacKinnon, "Feminism is the discovery that women do not live in this world," but rather in one where they are commonly and systematically underpaid, segregated (more than 50 percent) in mostly female jobs, harassed (up to 85 percent), beaten (at least 25 percent), and subjected to rape or attempted rape (44 percent).

"The social preconditions, the presumptions, that underlie the First Amendment do not apply to women. The First Amendment essentially presumes some level of social equality among people and hence essentially equal social access to the means of expression."

This is why MacKinnon, Torrey, et al do not agree that "more speech" is the answer to pornography, any more than it could have been the slaves' answer to slavery in 1850. If social inequality is commonplace and deep-rooted--if the law is male--then, they say, the abstract formal equality of the First Amendment will mainly protect those who are on top.

Clearly these people are not fundamentalists when it comes to the First Amendment. So perhaps it should not be surprising that Mary Becker, a professor at the University of Chicago Law School, is willing to take on the whole Bill of Rights. In a breathtaking article published last winter in the University of Chicago Law Review, she asks how well this sacred text meets women's needs. Her answer: not very. "Our governmental structure is not ideal from the perspective of women, other outsider groups, or, indeed, democracy. We could imagine better structures, and many are in place in some parts of the world. We should not be exporting ours, as is, to Eastern Europe."

The Bill of Rights contains little overtly sexist language, but Becker finds plenty of discrimination in it. The First Amendment religion clause favors institutions that on balance have been bad for women (both the Catholic Church and the National Organization for Women advocate positions on women's issues, but one of them doesn't have to pay property taxes). Its free-speech clause protects newspaper and broadcast owners from the government but does little to help women and poor people make their speech heard (both Ross Perot and a single mother in Robert Taylor Homes are "free" to speak to the nation). The Second Amendment, interpreted NRA-style, promotes violence, in which women rarely participate except as victims; interpreted militia-style, it fails to include women in one of the defining roles of citizenship--military service. (This is especially damaging to women when government gives veterans preference in hiring and promotion.)

The Fourth Amendment protects against unwarranted government intrusion into the home but does nothing to protect women against domestic battery and rape by those who share that home. The Fifth Amendment protects property, but doesn't recognize the role women's reproductive and domestic labor plays in producing property. The Bill of Rights as a whole lacks a sex-equality provision, which might at least help judges balance the interests of women against the interests of organized religion. The Bill of Rights includes no positive economic rights (to health care or housing) that might help improve the status of women. It is antimajoritarian (something the ACLU likes), and thus, says Becker, no help to women:

"Seeing the problem of democracy as the problem of majority oppression of the propertied minority is particularly inappropriate from the perspective of women. Women are a majority of the population, who have never controlled or even exercised their proportionate share of influence."

To the ACLU's Jane Whicher, most of this is either an exercise in irrelevance or Constitutional bungee-jumping. "I think the fault is in society, not in the document. This is not to say that the law and interpretation of the Bill of Rights shouldn't be changed. It might be improved by an Equal Rights Amendment.

Whicher thinks Becker makes some "dangerous suggestions--for instance, that government should subsidize or support speech promoting equality. As we know from Rust v. Sullivan"--the abortion "gag rule" case--"what the government subsidizes it can control the content of. And we know from history that the government does not protect women's interests. It has routinely seized books on birth control, abortion, sexuality, and lesbian relationships."

Whicher acknowledges the same social problems Becker does, but she thinks Becker's solution could only make things worse. The alternative to the Bill of Rights "is to let government make the rules. We tried that, and the speech that was ruled against was Margaret Sanger's." Becker's smiling reply is that, sure, any change is likely to be coopted and twisted--but women have to try something.

You don't have to be "of the left" to be a feminist, but it helps. Libertarian feminism exists--Joan Kennedy Taylor has just published a book on it, Reclaiming the Mainstream: Individualist Feminism Rediscovered--but its adherents are either few or unorganized. The idea that the market could be a solution, or government intervention a problem, is not widespread among feminists. Morrison Torrey puts it with characteristic force: "The government isn't raping us, men are." Chicago Kent's Linda Hirshman puts it with characteristic polish: "The male liberal legalists have hidden the ball with their talk of neutral, universalizable principles [such as the "reasonable person" or the First Amendment]. And the ball is that private structures of power--the family, the corporation--remain in place.

"Look--sexual harassment laws limit people's freedom. So why have them? Because if you are the harassee, you have no choice about it. Women don't even get the full fruits of liberalism. We don't enjoy physical freedom."

Hirshman pulls back the drapes at one end of the room, revealing a Near North backyard in the early dusk, a tranquil composition in shades of silver, black, and gray. Hirshman calls this the "navy blue" time of day--when too many women feel they have to be home.

"Why? Because we're afraid. We don't walk under the shadowy trees, we walk in the middle of the street and carry flashlights on our key chains. We don't believe in freedom as an end, because we haven't enough of our own."

On March 5, 6, and 7, the University of Chicago Law School will host a conference, "Speech, Equality, and Harm: Feminist Legal Perspectives on Pornography and Hate Propaganda." Panelists and speakers will include MacKinnon, Dworkin, Becker, Torrey, Larson, and national ACLU legal director John Powell. More information from the Coalition to End Violence Against Women, 1255 W. North Shore #2, Chicago IL 60626.

Art accompanying story in printed newspaper (not available in this archive): photos/Yael Routtenberg.

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