No male or female

I take the invitation to contribute to this volume to speak very personally about how I came to feminist legal theory and what I made of it. I take my title from the New Testament, Galatians 3:28, because I came to my own radical take on sameness feminism through youthful engagement with the Catholic Church’s radical past and repressive future on matters of sex equality and through engagement in college and graduate school with arguments for the equality of the sexes made from the Middle Ages through the French Revolution by otherwise conservative women defending their own right to participate in maledominated enterprises and otherwise radical men willing to challenge all received ideas, even those concerning women’s place. I brought this engagement with long history to the legal academy with me. My chapter provides a reminder that far more than three generations have

sought to transcend the boundaries of law through feminist theory; feminists, male and female, have been making their case for centuries. It is also an elegy for potential alliances lost; though many of the women who in prior centuries sought to bring their sex beyond the boundaries of the law were self-described conservatives on other matters, in my lifetime feminism and conservatism have come to be seen as antithetical, something I dealt with on a daily basis as a faculty member in two of the nation’s most conservative law schools, Virginia and Chicago. Also in my lifetime, the Church that brought me to sameness feminism at first repudiated sex equality and then turned to an embrace of difference, when official guardian of doctrinal purity Joseph Ratzinger, now Pope Benedict XVI, in official pronouncements explicitly rejecting the sort of sex and gender theory to which I am committed, came close to suggesting that even souls have a sex (Ratzinger and Amato 2004). Because the 25th Anniversary Conference at which I presented an initial

version of this chapter took place close to Halloween, the prelude to the feast of All Saints, I appeared at it in something of a costume, wearing the by now somewhat moth-eaten cadet blue pantsuit I wore when I first spoke at Martha Fineman’s Feminism and Legal Theory Workshop in June 1994 as a commentator on Katherine Franke’s draft on the Meaning of Sex. At that time, Katherine and I and others, such as Frank Valdes, were wrestling with questions

of what I have called gender discrimination, as compared and contrasted with sex discrimination. Gender discrimination, as I define it, is discrimination in favor of or against qualities coded masculine or feminine, sometimes irrespective of and at other times inflected by whether the person exhibiting those qualities is male or female. Katherine and I had different analytic approaches to this topic1

but shared normative goals, including interrogation of and resistance to what Katherine described in her draft as the “sartorial bureaucracies [which] have been [among] the institutional venues in which the struggle for sexual identity has been fought as a factual rather than a legal matter” (Franke 1994b: 13). Central to my own analysis of gender discrimination is that in the US today, sartorial and other norms are tilted sharply towards the masculine: “Women today are found in the work force, in pants, and in the outfield far more often and with far less comment than men are found in the nursery, in dresses, or in ballet class” (Case 1995a: 23, note 64). In the cocktail hour after our presentations, I made this point to Katherine by claiming that the pantsuit I was wearing was very close to what a man might wear. Katherine, who is the sort of butch who knows her way around a menswear department, correctly observed that no man would be caught dead in pants like mine, with a zipper on the side, a high waist, and flared legs. Her deconstruction of my attire did not stop there; she went on to say that, because I was wearing a high white mock turtleneck underneath a black sweater, I looked like a cleric. What’s up with that, she asked? The rest of this chapter is an answer to her question. I grew up Catholic in the immediate aftermath of Vatican II, and that,

I think, says more about the kind of feminist I am than anything else. In many respects, my vision of sex equality resembles that set forth in the Equal Protection jurisprudence developed by the US Supreme Court in the last third of the twentieth century. Like the Court, I have set my face against “fixed notions concerning the roles and abilities of males and females” (Mississippi University for Women v. Hogan 1982: 725). Critics have suggested that this makes me no more than a product of the legal culture in which I grew up. These critics may not realize that I am just old enough to have developed an opposition to sex stereotypes before the Supreme Court did. The cultural roots of my views are in my Catholic, at least as much as in my American, upbringing. The nuns who taught me through my 13 years of Catholic school

were women who in the fancy terminology of today had rejected repronormativity. Many of them were old enough to have come to the Church, not because of a particular vocation to the religious life, but because they felt called to do something other than be wives and mothers, and the Church gave them an opportunity to be scholars and teachers. Even the priests and monks I encountered were a model for men conversing seriously with women about something other than their families and their sex life. This commingling of the sexes for purposes other than sexual or familial, and the opportunity for a woman’s role beyond that of wife and mother has been part of the Church from its beginnings.