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Feminism UNMODIFIED Fem.inism. UNMODIFIED Discourses on Life and Law CATHARINE A. MACKINNON HARVARD UNIVERSITY PRESS Cambridge, Massachusetts, and London, England 1987 Feminism UNMODIFIED Discourses on Life and Law CATHARINE A. MACKINNON HARVARD UNIVERSITY PRESS Cambridge, Massachusetts, and London, England 1987 Copyright © 1987 by the President and Fellows of Harvard College Allrights reserved Printed in the United States of America 10 9 8 7 6 5 4 3 2 1 This book is printed on acid-free paper, and its binding materials have been chosen for strength and durability. Library of Congress Cataloging-in-Publication Data MacKinnon, Catharine A. Feminism unmodified. Bibliography: p. Includes index. 1. Wo men-Legal status, laws, etc.-United States. 2. Feminism-United States. I. Title. KF478.M25 1987 346.7301'34 86-25694 ISBN 0-674-29873-X (alk. paper) 347.306134 For Andrea Dworkin Contents INTRODUCTION The Art of the Impossible 1 I. APPROACHES 1 Not by Law Alone: From a Debate with Phyllis Schlafly 21 2 Difference and Dominance: On Sex Discrimination 32 3 Desire and Power 46 4 Whose Culture? A Case Note on Martinez v. Santa Clara Pueblo 63 5 On Exceptionality: Women as Women in Law 70 II. APPLICATIONS 6 A Rally against Rape 81 7 Sex and Violence: A Perspective 85 8 Privacy v. Equality: Beyond Roe v. Wade 93 9 Sexual Harassment: Its First Decade in Court 103 10 Women, Self-Possession, and Sport 117 III. PORNOGRAPHY 11 Linda's Life and Andrea's Work 127 12 "More Than Simply a Magazine": Playboy's Money 134 13 Not a Moral Issue 146 14 Francis Biddle's Sister: Pornography, Civil Rights, and Speech 163 15 On Collaboration 198 16 The Sexual Politics of the First Amendment 206 AFTERWORD 215 Notes 231 Acknowledgments 307 Index 309 Feminism Unmodified introduction The Art of the Impossible Brian Coyle: It's sometimes said politics is the art of the possible ... Sandra Hilary: Sometimes I think it's more the art of the impossible. Debate on the civil rights law against pornography, Minneapolis City Council, July 24, 1984 his is a second look at the second wave of feminism in the TUnited States, after fifteen years of trying to change the status of women by law and every other available means. Because I want you to hear me speaking, rather than read me writing, many of the texts in this collection appear exactly as they were spoken. The formality varies with the occasion, but they were all spoken first with­ out a written text, even those that were later revised. These are en­ gaged works, occasioned by the urgency of the problems women face, not by abstract agendas or academic imperatives. In retrospect, during the years these speeches encompass, 1981 to 1986, the wom­ en's movement has been moving toward a crossroads. The Equal Rights Amendment, designed to make sex legally irrel­ evant, was lost, in part through opposition by women. The abortion right, framed as a right to privacy rather than a right to sex equality, was recognized, only to be taken almost immediately from women who have least access to it.1 Losing it entirely is an ever-current dan­ ger, and its opponents include women. Women are poor, and pay is at least as far from being sex-equal as it was before the passage of legislation guaranteeing pay equality by law.2 Women are more and more losing custody of their children,3 in part because of legal re­ forms feminists helped put in place. The rape rate is increasing sig­ nificantly, while the conviction rate for rape is not,4 in spite of legal changes feminists fought for and won over the last decade.5 We are headed for another showdown on pregnancy, this time framed as a debate on whether states that provide maternity benefits are violat­ ing the view of sex equality that organized feminism has sought to institutionalize.6 In this string of defeats and declines, the law on sexual harassmene and some legal advances against domestic battery of women and marital rape-the social impact of all of which is as yet unknown-are among the few exceptions. To this picture, add 1 Introduction the feminist attempt to get civil rights for women exploited by por­ nographers, an attempt that was opposed by some claiming feminist ground for their opposition, and it begins to seem like time for a real reassessment. Feminism has not changed the status of women. It is not enough to observe that social change is glacial, law is inadequate to move anything basic, and power is powerful. These truisms parade solip­ sism, the complacency of privilege, and despair as sophistication, cri­ tique, even radical politics. And to describe a state of affairs is not to explain it. An explanation of the failure of feminism to change the world for women must be a study in that world as well as of it. Because we need to know them, these speeches are looking for answers to the big questions of the subordination of women to men: its roots, damage, pervasiveness, tenacity, enforcement, and capacity for change. We need to know how the inequality of the sexes is lived out, threaded from one moment to the next through millions of life­ times of habit into individual identities and social relations. We need to know more about how women experience and respond to being second class, from unconsciousness and denial and collaboration to consciousness and resistance and confrontation. We need to know precisely how the benefits and burdens of this system are allocated­ including the way showcase indulgences to a few women in a rich liberal state purchase legitimacy for a system that functions nation­ ally and internationally at the expense of all women. We need to know how this system gives each woman a survival stake in the sys­ tem that is killing her. We urgently need to comprehend the emerging pattern in which gender, while a distinct inequality, also contributes to the social em­ bodiment and expression of race and class inequalities, at the same time as race and class are deeply imbedded in gender. For example, the sexualization of racial and ethnic attributes like skin color or stereotypes is no less a dynamic within racism for being done through gender. The masculinity of money as a form of power takes nothing from its function as capital, although it does undermine some models of economic rationality, including leftist ones. Women get their class status through their sexual relations with men of par­ ticular classes; perhaps their racial status, also no less real for being vicarious, similarly derives from racial hierarchies among men. From these and other examples, gender in this country appears partly to comprise the meaning of, as well as bisect, race and class, even as race and class specificities make up, as well as cross-cut, gender. A 2 Introduction general theory of social inequality is prefigured, if inchoately, in these connections. I am thinking all the time about power: the simplicity of the force and the complexity of the authority that make male supremacy a spe­ cific politics, and the changing shades of complicity, its feminine face. Some day, probably a day marked by no one at the time, but some time after the beginning of the end of this system, the questions con­ sidered here will simply become part of "the political." How sister­ hood became powerful8 while women were powerless will take its place among the classic alchemies of political history. How did they do that? students will be encourged to wonder. My arguments and meditations to this end provide the themes that unify this volume. The first theme is the analysis that the social re­ lation between the sexes is organized so that men may dominate and women must submit and this relation is sexual-in fact, is sex.9 Men in particular, if not men alone, sexualize inequality, especially the in­ equality of the sexes. The second theme is a critique of the notion that gender is basically a difference rather than a hierarchy. To treat gender as a difference (with or without a French acccent10) means to treat it as a bipolar distinction, each pole of which is defined in con­ trast to the other by opposed intrinsic attributes.11 Beloved of left and right alike, construing gender as a difference, termed simply the gen­ der difference, obscures and legitimizes the way gender is imposed by force. It hides that force behind a static description of gender as a biological or social or mythic or semantic partition, engraved or in­ scribed or inculcated by god, nature, society (agents unspecified), the unconscious, or the cosmos. The idea of gender differencehelps keep the reality of male dominance in place. The third theme identifies pornography in America as a key means of actualizing these two dynamics in life. Pornography turns sex in­ equality into sexuality and turns male dominance into the sex differ­ ence. Put another way, pornography makes inequality into sex, which makes it enjoyable, and into gender, which makes it seem nat­ ural. By packaging the resulting product as pictures and words, por­ nography turns gendered and sexualized inequality into "speech," which has made it a right. Thus does pornography, cloaked as the essence of nature and the index of freedom, turn the inequality be­ tween women and men into those twin icons of male supremacy, sex and speech, and a practice of sex discrimination into a legal entitle­ ment. Confronting pornography through civil rights law12-meaning, 3 Introduction with a concrete intention of actually doing something about the dam­ age pornography does to women's safety and status-has somewhat illuminated the social meaning of state power.
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