The argument “from race”—that a given distasteful discrimination is “just like racial discrimination”—is a hallmark, bordering on cliché, of American political and legal debate. From afar, this feels like a historical inevitability: race was the site of America's most high-profile conflict between the demands of our creed and the conduct of our citizenry, and, therefore, it makes sense for future social movements to attempt to grasp its moral force when pressing their own claims before government and the public.
While not wholly adverse to this narrative, Serena Mayeri enriches it in important and compelling ways by historicizing just how it was that feminist reformers began utilizing the race analogy in earnest. The argument from race gained favor not just because of its moral purchase, but also because it provided important strategic benefits—ranging from perceived increased flexibility to coalition building. This benefit, in turn, was sufficient to help override worries that linking the struggle for women's equality to that of race equality would fatally sabotage the former's attempts to gain support in racially regressive Southern states. Meanwhile, black women—sometimes hesitant to align themselves with a feminist movement itself infected by racism—found that the coalitional benefits of linking race and sex offered a promising route to remedying their “double discrimination” (55).
Although noting the early alliance of abolitionists and suffragists as a precursor to modern race/sex coalitions, Mayeri opens at the intersection of two important historical developments that flowered decades later. The first was Brown v. Board of Education and the revitalization of the Fourteenth Amendment as an effective tool in combating racial discrimination. The second was a deep fracture within the feminist movement over whether to support the Equal Rights Amendment (ERA). The ERA was controversial among feminists because its blanket prohibition on all sex classifications would seem to undermine sex-conscious protective pieces of legislation that had taken women's advocates decades to win. The latter divide created a hunger for a middle way, and the former advance indicated that a strategy that latched onto the Court's response to racial inequality could reap considerable rewards.
Reasoning from race, as pioneering black feminist attorney Pauli Murray hoped, would “straddle the line” between ERA proponents and skeptics, as the jurisprudence developing from the Fourteenth Amendment seemed more flexible in its ability to “eliminate pernicious discrimination against women … without disrupting protections important to labor advocates” (17–18). Although many feminists were at first dubious that Fourteenth Amendment would provide much help to their cause, Brown signaled a new, more robust era of judicial civil rights enforcement that promised significant benefits to the women's movement, if it could be harnessed.
The problem was that if sex discrimination was only problematic insofar as it was akin to racism, feminist advocates were in a bind when combating forms of sex discrimination that seemed to have no clear racial analogue—in particular, discrimination surrounding pregnancy and childbirth. Conservative opponents of the women's movement deftly adopted the “reasoning from race” strategy to argue that pregnancy rendered women and men intrinsically different in a way the blacks and whites were not. Meanwhile, the overall national retreat from racial remedies made it a less appealing ally—in an inversion from the 1950s dynamic, civil rights groups, and particularly black women, were forced to rely more heavily on the political muscle and legal momentum of the women's movement (187). This was often particularly painful because of sharp differences between black and white women regarding the symbolism of motherhood. Whereas white motherhood was the proverbial pedestal-turned-cage, black women—who had largely been excluded from the traditional conception of motherhood and were reeling from the 1965 Moynihan Report's effective scapegoating of them as responsible for the demise of the black family—felt that their unique standpoint was undervalued within white feminist frameworks.
Finally, Mayeri astutely develops the important point that the doctrinal interests of women and racial minorities may well diverge. Feminist litigators, most notably Ruth Bader Ginsburg, were keenly aware that many if not all sex-discriminatory classifications were justified as “remedial” or “protective” of women, even as they embodied traditional gender stereotypes. Arguing against these laws was a delicate proposition to begin with, and the degree of difficulty only increased as Ginsburg also sought to avoid undermining racial affirmative action programs (125). But because race and sex had become linked in the mind of the American judiciary, judges were quick to ask how the feminist critique of laws favoring, for example, widows over widowers cross-applied in the case of racial preferences.
These considerations have significant import today, as both sex and race doctrines are deployed in new antidiscrimination contexts (particularly sexual orientation). Mayeri's strong historical narrative demonstrates that these comparisons are useful, but ought to be understood as a tactic rather than a dogma. There is no natural alliance between subordinated groups, but there often are shared interests, and a fluid and flexible coalition among various minority groups can yield considerable gains.
