Tuesday, January 10, 2006

The power--and powerlessness--of analogy

Christine Littleton, a feminist legal scholar, notes in her "seminal" (hah) article Reconstructing Sexual Equality, 75 Cal. L. Rev. 1279:
Equality analysis runs out when it encounters real difference.
I think some ancient Greek or other must have first pointed this out, but I read about it in Nozick's "Socratic Puzzles". He discusses why argumentative analogies get points for elegance but rarely convince. If you are trying to convince someone of X, and you say it's similar to Y, which we all must agree with, then there's only one way this argument can help you win: if X and Y are exactly the right distance apart so that your opponent's disagreement with X doesn't corrupt his opinion about Y, or make him think X and Y are so far apart they're unrelated. If they're too close, you buy yourself nothing because he simply rejects Y as well; too far and you can't close the distance. (Unless you can pull off a mashal, making him realize an internal contradiction.)

Here's the application to modern equal protection analysis. Say you want gays to have the rights to marry. "They're just like straights!" If I oppose gay marriage, I can either retort that they're not alike at all, or reject straight marriage as well. (The latter, in fact, is not so implausible: a libertarian might want the state out of these areas to avoid having to make precisely these decisions, and some conservatives have tried or threatened to shut down all marriages when gays get those rights.)

So the question returns to which classes are protected--which things are really equal for the sake of the analogy. And this is a deep philosophy issue, for which the original analogy buys you nothing. Plato said true philosophy, in its attempt to understand sameness and difference, cuts the beast of reality by the joints. When you've done that, you then can say "these things are the same, because they're on the same bone" or "these things are different, because despite being close to each other, they're on different bones." This may be why feminists like Littleton are wise to reject an assimilative "equal treatment" view and push more for a special treatment model.


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