Special Issue: Law and the Imagining of Difference: Volume 75

This chapter uncovers the destabilizing and transformative dimensions of a legal process commonly described as assimilation. Lawyers working on behalf of a marginalized group often argue that the group merits inclusion in dominant institutions, and they do so by casting the group as like the majority. Scholars have criticized claims of this kind for affirming the status quo and muting significant differences of the excluded group. Yet, this chapter shows how these claims may also disrupt the status quo, transform dominant institutions, and convert distinctive features of the excluded group into more widely shared legal norms. This dynamic is observed in the context of lesbian, gay, bisexual, and transgender (LGBT) rights, and specifically through attention to three phases of LGBT advocacy: (1) claims to parental recognition of unmarried same-sex parents, (2) claims to marriage, and (3) claims regarding the consequences of marriage for same-sex parents. The analysis shows how claims that appeared assimilationist – demanding inclusion in marriage and parenthood by arguing that same-sex couples are similarly situated to their different-sex counterparts – subtly challenged and reshaped legal norms governing parenthood, including marital parenthood. While this chapter focuses on LGBT claims, it uncovers a dynamic that may exist in other settings.

This chapter explores the relationship between disability identity, civil rights, and the law. Twenty-five years after the passage of the Americans with Disabilities Act, the question remains why disability rights legislation does not go far enough toward addressing access, stigma, and discrimination issues. People with disabilities have found empowerment from disability rights laws, but these laws are also restrictive because they define people in relation to medical aspects of their disabilities and narrowly define society’s obligation for inclusion. The successes and failures of disability rights laws are an important contribution to the study of conceptions of difference.

This chapter contributes to the discourse of difference by problematizing the sameness/difference trope through the lens of the exceptional. It explores the nature of being exceptional with an expectation that its nature is contingent and variable. At the heart of understanding what constitutes exceptional is its implicit comparison with the average. While exceptional is defined to include both individuals who achieve in extraordinary ways and individuals with a physical or mental impairment, the two definitions are consonant in that both describe individuals who deviate from expected norms. Relying on the insights from pragmatism, this chapter considers community habits exceptional individuals must confront in forming their choices. In this way, it further adheres to the lessons from pragmatism for norm change. The strategies individuals use to alter the effects of being perceived as exceptional contribute to the overall discourse in equality and equal protection and potentially constitute the individual action that formulates change. It examines some approaches to the Americans with Disabilities Act (ADA) derived from civil rights and from economic perspectives and the relevant matrix of choices available to the exceptional to understand the potential for productive change. With this foreground, it examines the choice of exceptional individuals to cover or convey matters of their identity. This chapter pays particular attention to these choices in seeking accommodations under the ADA. Ultimately, this study strives to participate in the conversation seeking to maximize human potential.

This chapter examines the relationship between constitutional guarantees of sex equality, understood as prohibiting unequal treatment between men and women, and the constitutional protections of maternity. Textual guarantees of sex equality are nearly universal in constitutions around the world, and many constitutions in Europe, Latin America, and Asia also include provisions guaranteeing mothers the special protection of the state. In the United States, by contrast, the special treatment of mothers has long been contested as a threat to gender equality, and the efforts to add a sex equality amendment to the U.S. constitution have failed over the past century because of conflicts about the status of motherhood. This study traces the origins and jurisprudential development of maternity clauses in European constitutions to shed light on the possibility of synthesizing maternity protection with a constitutional commitment to gender equality.

This chapter comments on the papers produced as part of the symposium on Law and the Imagining of Difference. The chapter observes that the diversity that marks the human species gives rise to differences across individuals and groups. These differences create a challenge for law, for legal rules, and categories tend, among other things, to flatten or suppress difference. How to ensure that law treats differences properly? One way is to require that legal rules be rationally related to a proper purpose. Another is to require that persons be treated equally. If the principle of equality solves certain problems of flattening, it also may create problems. The key to applying properly the principle of equality, then, is to answer a set of antecedent questions: “who” must be treated as equal to whom, “with respect to what” rights or interests, and “how”? Martha Minow has provided rubrics for addressing these questions in ways that uncover problematic applications of the principle of equality. The chapter addresses the distinct versions of equality presupposed in claims for Douglas NeJaime’s arguments for same-sex marriage, Julie C. Suk’s social and economic approach to sex-based equality, and Megan A. Conway’s and Zanita E. Fenton’s ambitious explorations of the value of equality in the law of disabled persons. The chapter concludes that law can be directly responsive to some claims of inequality, but that other claims will require something other than law.