Courtney M. Cahill (Roger Williams University - School of Law) has posted Celebrating the Differences that Could Make a Difference: United States v. Virginia and a New Vision of Sexual Equality (Ohio State Law Journal, Forthcoming) on SSRN. Here is the abstract:
This Essay, a contribution to the Ohio State Law Journal’s 2009 symposium on The Jurisprudence of Justice Ruth Bader Ginsburg: A Discussion of Fifteen Years on the U.S. Supreme Court, argues that Justice Ginsburg’s United States v. Virginia majority opinion deserves as revered a place in the law and sexuality canon as it currently enjoys in the law and gender canon. Described by some commentators as an “ambitious,” “particular,” and “distinctive” account of sex equality, Ginsburg’s Virginia opinion at once celebrates the reality of difference between the sexes and makes clear that the government cannot rely on such difference to justify the unequal treatment of them. This Essay contends that Ginsburg’s celebration of difference in Virginia could, and indeed should, be a model for gay rights advocacy, and perhaps in time for a gay rights jurisprudence. Where that advocacy has remained stubbornly tethered to a no-differences paradigm, one that insists on a one-to-one correspondence between gays and straights notwithstanding the reality of difference that exists between those two groups, their intimate pairings, and the families, if any, that they share, Ginsburg’s celebration of gender difference both in and beyond Virginia cogently demonstrates that difference need not defeat, nor be an impediment to, equality claims in our constitutional order.
