The official US publication date of this portfolio of Catharine MacKinnon’s articles and speeches over the past twenty-five years coincided with the release of Inside Deep Throat, a documentary about the making of the notorious and hugely profitable pornographic exploration of the lady with the lively larynx. MacKinnon has spent a good portion of her career as a scholar and litigator trying to develop legal and other sanctions against pornography – including having helped Deep Throat star Linda Boreman (Linda Lovelace was a nom de porn) reveal the often coercive and violent underside of the industry. Indeed, so prominent is MacKinnon as an anti-pornography activist and sometime adviser to Linda Lovelace that organisers of a panel addressing the documentary’s opening-night audience at the Paris Theater in New York made certain to include her. Many of the reviews of the film included accounts of the panel discussion, and if they are any indication, those who once reviled MacKinnon for being a pimp for the puritanical, a shill for the sexually censorious, now seem eager to portray her simply as ridiculous. One reporter recalled with evident glee that the gay men in the audience, at least, laughed uproariously in response to MacKinnon’s claim that the eponymous act of the original film was dangerous. Tina Brown, former editor of the New Yorker, described her, with a ‘tight white face and 19th-century hairdo’ making ‘her look like Carry Nation on the South Beach diet’, launching into ‘a tirade about how Inside Deep Throat had failed to point out that Linda Lovelace had been a victim of “throat rape”’.
The heavy rhetorical equipment deployed to scuttle the message by poking fun at the messenger has an arresting analogue in the rhetorical heft and prestige of MacKinnon’s publishers: this is at least the fourth of her books to appear under the Harvard imprint. Indeed, one mark of her status as someone taken very seriously in some very serious quarters is the fact that the current collection is simply that – not a book woven together from or built on older pieces, but a handy repository for some of MacKinnon’s law journal articles, anthology contributions and speeches. And as her own website at the University of Michigan Law School tells those who don’t otherwise know it, she is one of the most widely cited legal scholars in the English language – not because her readers necessarily agree with her, but because they can’t ignore her views. No doubt one of the reasons she is not simply disagreed with but lampooned is that many of her detractors wish that, unlike Linda Lovelace, she would just keep her mouth shut.
Pornography has not by any means been MacKinnon’s only target, which is one of the ways in which she can be distinguished from the unholy – that is to say, holy – political bedfellows into whose company her strong anti-pornography views have thrown her. For example, unlike the Concerned Women for America, for whom pornography is at odds with their self-declared mission ‘to protect and promote biblical values among all citizens – first through prayer, then education, and finally by influencing our society – thereby reversing the decline in moral values in our nation’, MacKinnon has been a fierce, relentless and tireless advocate of sexual equality. Efforts to achieve such equality, as she understands it, are deeply undermined not only by pornography but by prostitution, sexual harassment, rape and other forms of physical violence. Women’s Lives, Men’s Laws offers reminders of what she thinks sexual equality would look like and how she thinks the law might come to share in the creation of such equality despite having spread its protective arms around sexual inequality for so very long.
What would it be for men and women to live as equals? What would be the signs that they were indeed living as equals? What is the role of the law in establishing and protecting such equality? Here’s MacKinnon in an article from the Yale Law Journal in 1991, reprinted in this collection:
If sex equality existed, there would be no more forced sex; safe effective contraception would be available and the psychological pressures surrounding its use would be gone; whatever womanhood meant, women would need neither men nor intercourse nor babies to prove it; abortions for sex selection as now practised would be unthinkable; the workplace would be organised with women as much in mind as men; the care of children would be a priority for adults without respect to gender; women would be able to support themselves and their families (in whatever form) in dignity through the work they do.
It’s only when conditions such as this prevail, MacKinnon insists, that substantive rather than mere formal equality exists. The distinction is a constant theme in her work. An anniversary of the landmark racial segregation case, Brown v. Board of Education, provided one of the occasions on which she addressed it.She and eight other legal scholars were asked to imagine what they would have said in that 1954 decision, knowing only what the Supreme Court justices could have known at the time. For ‘Justice’ MacKinnon, Brown provided a welcome opportunity to understand how the 1896 Court in Plessy v. Ferguson managed to interpret the equal protection clause of the 14th Amendment as permitting racial segregation under the infamous slogan of ‘separate but equal’. Surely, ‘Justice’ MacKinnon writes, it’s because the Plessy court believed that ‘Nothing … precludes law from simply replicating the consequences of social inequality and calling that “equal protection of the laws”. Rather, the Plessy rule encouraged, and Plessy achieved, precisely’ such replication. But according to MacKinnon, neither stare decisis nor any other interpretative constraint requires the Brown court to hold to the Plessy precedent and ‘reproduce the inequality the 14th Amendment aimed to end’. The Brown court need not regard the obligation of impartiality to be the same thing as a pledge to ignore the obvious: ‘We need not pretend not to know as judges what we know as members of our society.’ We, the ‘justices’ of 1954, know the horrible and disgraceful history – the substance – of racial discrimination and subordination. Surely we, like those who framed the 14th Amendment, understand its purpose to be ‘to promote equality, not merely to preside passively over a Constitution that reflects social inequality by sorting people by law in the same order into which an unequal society has ranked them’.
In only one area of law in the United States, according to MacKinnon, has there been serious attention to substantive and not merely formal equality for women: sexual harassment in the workplace. We are operating with a concept of formal equality if we ask simply whether people similarly situated are receiving the same level of protection. True, women should receive no less protection against harassment than men do. And yes, sometimes sexual favours are demanded of a woman as a condition of continued employment. But surely the same thing could happen to a man, so the harm that comes her way has nothing to do with her being a woman. Too bad, sweetie: you’ve got a problem, and it may have a legal remedy, but not because it’s a matter of sex discrimination; you don’t have this problem because you are a woman. If a man has or could have this same problem, your being female is merely coincidental to the situation in which you find yourself.
The courts moved to a more substantive understanding of equality, according to MacKinnon, when they were able to notice and willing to act on the fact that harassment of women at work is itself an expression of the inequality of women, and, so described, not something that could just as well happen to men. (That inequality can be ‘sexually enacted, enforced and imposed’ is particularly clear, MacKinnon suggests, in the case of the rape of slave women by their white masters: it would be preposterous to propose that whatever harm came to slave women by such violence, it had nothing to do with racial discrimination since the victims might have been white women or for that matter male slaves. Rape of black women was one of the most vivid expressions of white male supremacy and was hardly discouraged by law.) A focus on formal equality typically leaves courts in the position of wrongly presupposing as a matter of existing fact conditions of equality they are supposed to be protecting. It can invite the ‘trenchant irony’ of Anatole France’s remark that ‘Law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’
In a world of sexual equality – to return to the question of what it would be to live in such a world, according to MacKinnon – sexual harassment wouldn’t occur. This is not because in a world of robust equality men would never harm women, though presumably there would be a lot less such harm. It is because the grounds for the presumption that the harm came to the woman because she was a woman would have disappeared. And so, too, ‘if sex equality existed, there would be no more forced sex.’ MacKinnon here is in part making a kind of definitional claim: she is treating the absence or near absence of forced sex as a necessary condition of sexual equality, so if there is sexual equality there won’t be forced sex. But she is also implying that the closer a society comes to having sexual equality, the harder it will be to show that any harm endured by a woman is visited on her as a member of this specific disadvantaged group. Were there sex equality, a woman would not, a woman could not, be a member of a group disadvantaged on account of sex.
By MacKinnon’s own lights, the law would not seem to be a promising partner in the battle for either formal or substantive equality. One of its central functions, she has claimed, ‘is to organise social power among groups’. In societies governed by the highly touted rule of law, she advises, ‘law is typically a status quo instrument; it does not usually guarantee rights that society is predicated on denying.’ Why, then, has she continued to write for law journals, try to draft legislation, and litigate in court? Like a lot of things, law ‘does not stop affecting you when you stop trying to affect it’. And despite her own reservations, she has the sneaking suspicion that one of the reasons women have been told that law is not a very useful instrument of change is precisely because it is, or anyway can be, a forceful tool:
Variously potent in all cultures, law is particularly used in the United States to distribute and negotiate resources, rules, and power itself, making it at once a powerful medium and a medium for power. A form of force, law is also an avenue for demand, a vector of access, an arena for contention other than the physical, a forum for voice, a mechanism for accountability, a vehicle of authority, and an expression of norms.
Changes in the law are not necessarily accompanied by very deep changes in the society, but it may be impossible for any significant social change to occur without legal change. Such transformation is unlikely to come about, however, in the absence of plaintiffs and advocates who possess ‘vision, insight, conceptual acuity, principle, a sense of history and indomitability’. MacKinnon sees herself, her clients – including Bosnian Muslim and Croatian women who sought redress against genocidal rape – and those judges willing to acknowledge the facts on the ground, as having kept burning the flame of the ‘second wave’ women’s movement. At an earlier point in her career, at least, she found many academic feminists, including those in law schools, incapable of telling their assizes from their elbows and guilty of having abandoned the hard-won insights of the movement as she knew it to have arisen.
Though she would not want to be caught in a political dalliance with John Stuart Mill, MacKinnon would surely second his claim that ‘the generality of the male sex cannot yet tolerate the idea of living with an equal.’ But MacKinnon is not without concern that many women suffer from such equiphobia as well – or rather, that some soft-pedal their views about equality, sensing that the depth of misogyny can be measured by the fury with which attempts to describe it and dismantle it will be met. She insists that there is no way that ‘sex equality can be made non-threatening and still be real.’ So however satisfied she may be with the publication of yet another book by a major university press, there is much in her work to suggest that she is or should be highly suspicious of this hearty pat on the back. And however tiresome it must be to be characterised again and again, this time by Tina Brown, as a notorious ‘feminist virago and porn scourge’, she is likely to regard the animus her remarks provoke to be a measure of the work still to be done to create sexual equality. On the occasion of the recent death of Andrea Dworkin, one of her main partners in the battle against pornography, MacKinnon said that it was precisely because Dworkin unceasingly and unapologetically provided the ‘heavy artillery of the women’s movement in our time’ that she ‘took its heaviest hits’. Indeed, Tina Brown ended up acknowledging a related phenomenon – the lion clears room for the lambs and then is accused of roaring too loudly – that occurred in connection with MacKinnon’s appearance at the panel discussion of Inside Deep Throat. Brown allowed that ‘half the women secretly found themselves agreeing more with MacKinnon’ than they were willing to admit: ‘They wouldn’t be caught dead saying so out loud, of course, for fear of being cast as a retro feminist or, worse, the kind of pop-eyed theo-con who wages war on SpongeBob SquarePants’ (or the Teletubbies). Be careful what you do with those throats, girls. The boys might not like it.