LOS ANGELES TIMES INTERVIEW : Catharine MacKinnon : Pursuing a Different Approach to Sexual Inequality

When Ruth Bader Ginsburg went to work as a U.S. Supreme Court justice this month, capping a legal career spent, in part, fighting gender bias, one person who was overjoyed was the feminist legal theorist and anti-pornography crusader Catharine A. MacKinnon.

In many circles, MacKinnon is the better known of the two--a leading figure in the movement to rid the law of male bias, a popular professor, author and, lately, gossiped-about companion of Jeffrey Masson, the psychoanalyst suing Janet Malcolm of the New Yorker for libel.

At first glance, MacKinnon and Ginsburg appear to approach the problem of sexual inequality differently. As a lawyer, Ginsburg focused on issues of economics and status, such as equal pay. MacKinnon is preoccupied with pornography, rape and sexual abuse.

When MacKinnon developed her now famous anti-pornography ordinance in the 1980s, the American Civil Liberties Union accused her of promoting censorship. For years, Ginsburg worked for the ACLU, arguing many of its biggest sex-discrimination cases in the ‘70s, sometimes on behalf of men.

Yet, MacKinnon contends that their differences are largely generational. “Because she did what she did, I can do what I’m trying to do,” the 47-year-old University of Michigan law professor said of the 60-year-old justice.

A Yale Law School graduate with a Ph.D. in political science, MacKinnon is credited with having persuaded the Supreme Court that sexual harassment is discrimination--not only when it involves a quid pro quo but also when the harasser simply creates a “hostile environment” for the victim.

In her new book, “Only Words,” MacKinnon argues that equality and freedom-of-speech laws are “on a collision course.” Pornography should be seen not as speech, she argues, but as an act of discrimination--something done to women and no more worthy of protection than a “Whites Only” sign.

The entire print run sold out before the publication date.

On leave from teaching, MacKinnon is spending the year in Europe on a fellowship, preparing a casebook on sex equality, pursuing litigation on behalf of Croatian and Bosnian victims of sexual atrocities and researching how pornography is produced worldwide.

Passing through Washington on a recent afternoon, she discussed Ginsburg’s record as a lawyer and feminism’s impact on the law.

Question: What was your reaction to Ruth Bader Ginsburg’s nomination?

Answer: My reaction was ecstasy: That a woman whose professional life had centered on women would be nominated for the Supreme Court--it was just an extraordinary thing. . . .

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Q: Yet, there must be areas in which you disagree with her approach?

A: I would say that it’s more a matter of the issues that have been developed by litigation on behalf of women . . . than disagreement with her approach. It seems to me that the kinds of arguments she developed were appropriate for the issues that she was writing on. They are issues that raise questions of myths, stereotypes, arbitrary treatment. And even in the process of her developing those arguments, which center on images of women and the way those images are misused to create real detriments to women . . . her arguments show a clear perception of women’s substantive second-class status, of the realities of women’s situation, not just the misrepresentations of it. She understands the way women are treated as inferiors and therefore made to be inferior in status.

So I think we’re just seeing a generational shift. Because she developed the approaches she did and established them in laws in the way she did, that makes it possible for others of us to think about other issues and to further those approaches.

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Q: What, specifically, are you referring to?

A: Well, her work centrally treats issues of arbitrary classification on the basis of sex. That approach doesn’t particularly suit, for example, issues of violence against women . . . or issues of sexual abuse more generally. The issues of arbitrary treatment or gender classification, by law, are crucial, but that approach better fits those issues than it does the much more complicated ways that aggression against women becomes acceptable, both socially and legally. . . .

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Q: The old approach doesn’t address more fundamental problems for women?

A: . . . What I’m saying is that her work is predicated on achieving equality for women, where women and men can be argued to be similarly situated. What violence against women, in particular, raises is the extent to which sex inequality is so enforced and entrenched that the sexes are not similarly situated. . . . That’s exactly the moment at which inequality is so effective, so pervasive and so deep that it most needs to be addressed. . . .

Ultimately, it needs to be recognized that (the similarly situated) approach has great difficulty addressing issues like comparable worth, where it’s not only that women and men are not paid the same for doing the same work, they are not permitted to do the same work. And they also are paid differently for doing different work, even when what is different about the work is primarily that women and men are doing it.

So, again, when you’ve got the deepest inequality, which is when you’ve got segregation of jobs on the basis of sex, and you say you can’t do anything if the sexes are differently situated, then you can’t address those problems. But those are the problems that most pervasively affect the most women. It is crucial that that be addressed.

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Q: How?

A: I think you do it by building on what is also present in Ruth Bader Ginsburg’s legal arguments. That is her focus on and understanding of the ways in which women are disadvantaged, understanding that being treated as a second-class citizen and human being is the real problem. . . . One could almost say that the issues on which the Supreme Court in their decisions were strongest for women are exactly the issues that Ruth Bader Ginsburg argued. Her clarity becomes their clarity.

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Q: Such as which issues?

A: . . . Dothard vs. Rawlinson is a good example. She argued that women should not be kept out of jobs as prison guards in contact positions in male-only prisons, and that the “bona fide occupational qualification” should not be broadened or read to say that because women are women, that we can’t be guards in these contact positions. The Supreme Court understood that. But they went on to rule, in essence, that, because a woman is a woman, she could pose a particular danger to prison security. And they said that it was her capacity to be raped that made her be that danger.

What I think happened here is that the Supreme Court agreed with the kinds of arguments that Ruth Bader Ginsburg was making when she said that height and weight and female stereotypes should not be reasons why women shouldn’t be prison guards. But when it came to this question of the capacity to be raped, it seems to me that some of the potential limitations of her approach became clear. . . .

Socially speaking, women and men are not similarly situated in terms of the capacity to be raped. At the same time, it is a vicious stereotype that women can’t be prison guards just because we can be raped. So it’s a place at which the realities and the images, myths and stereotypes converged. . . .

What needs to be changed here are prisoners, as well as policies of states that keep women out. If you’re going to say women’s capacity to be raped justifies sex discrimination in employment, once they realize how often women are sexually harassed at work we’re going to be seen as a threat to job productivity.

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Q: Ginsburg focused on economics and status. You focus on rape, harassment, pornography. Why the difference?

A: The issues that Ruth Ginsburg addressed were the issues that came up on the front burner at the time. They also are the issues that are legally most amenable to more traditional equality approaches. . . . My own approach, coming from the women’s movement and being a whole generation behind in time--our priorities have been mass priorities. They’ve focused on asking the question: What does this do for all women? It isn’t that the initiatives that she took don’t affect the situation for all women. They do. But they have their most direct impact on women who are an elite.

That isn’t exclusively the case. For example, when she’s talking about getting benefits for women workers that don’t denigrate their efforts to both work and have families, which Ruth Ginsburg has been clear on. In the areas of pregnancy benefits as well as survivor benefits, those issues are not just elite issues. But they do focus on those women who, at least to some extent, are, other than pregnancy, similarly situated with men. . . .

When you’re looking at issues of sexual abuse and violence as they arise through the law of rape, through abortions and their denial of access to them, through sexual abuse of children, through pornography, through prostitution--what you’ve got is a different legal arrangement. Sometimes, you have laws making it a crime to do those things, but in ways that don’t work for women. Sometimes, you have laws making it a crime to do those things, but the laws are not enforced. Sometimes, you have laws making it a crime to do those things and the laws are enforced--for example, against prostituted women and not enforced against pimps. . . . So there’s a whole other level of the way in which the legal system participates in keeping women second-class . . . that requires another level of analysis.

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Q: Some people were bothered by Ginsburg’s critique of Roe vs. Wade.

A: Since I share the critique, I’m not bothered by it. . . . It has long been my view that sex equality is what is denied to women when women are denied abortions, and that criminal abortion laws deny women equal protection of the laws.

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Q: Have privacy arguments harmed women?

A: Well, yes. Privacy was used to protect the consumption of obscenity in the home, without any consideration of the effect of men consuming pornography on women and children in those homes. The home is the most dangerous place for women in society. It’s where women are subjected to the most violence, through battering and rape. . . .

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Q: You’ve been criticized in Katie Roiphe’s “The Morning After,” in which she suggests that the current focus on date rape is a step backward for feminists, that if women don’t want sex, they can just say no.

A: Many women who don’t want to have sex do just say no. And the men who are raping them don’t respect that. And the laws that assess whether that’s rape often don’t respect that. The fact is that most women are raped by men who we know. Talking about that is not a step backward for women. To the extent that Katie Roiphe’s work is contributing to trivializing that issue, that is a step backward for women.

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Q: How ought the law to approach date-rape cases?

A: In most places, rape, legally, is an event in a man’s mind much more than it is an event that physically happened to a woman’s body and life. No matter how much force was used, in most places if the man mistakenly believed that the woman consented to the rape, it isn’t a rape. Now, suppose he’s been consuming pornography and she says no, he can sincerely believe that she meant yes. And if it is believed that he was sincere in his belief, then it isn’t rape, no matter how much force was used. . . .

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Q: Should the man’s state of mind not be a factor?

A: I think what he did to her is primarily the issue. . . . I think that rape should be interpreted as an act of sex discrimination and that women should be able to initiate our own cases and not have to beg prosecutors on our hands and knees . . . And I think that the criminal law of rape should be accountable to sex- equality norms. . . .

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Q: Where has feminism succeeded in changing the law and where has it failed?

A: . . . There is beginning to be some movement in narrowing the wage gap. But at the same time, real wages for people, on the average, are dropping. You would think there was some progress in the rape law in terms of eliminating corroboration requirements and extending sexual-history protections. But at the same time, the rate of rape hasn’t gone down. One area of progress in the law that is clear is with sexual harassment, where there was no law against it and now there is. . . . But the actual rate of women being sexually harassed in the work force is virtually constant.

So, if one takes as a measure of success that women can fight back, there have been a lot of successes. But if one takes it as a measure of success that women shouldn’t have to need to fight back, we haven’t gotten very far.