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CATHARINE MACKINNON Printer Friendly Page

Sex in the Twilight Zone: Catharine MacKinnon’s Crusade
By Roger Kimball
October 1993

Liberal and Left
By David Horowitz

 


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  • Radical feminist law professor and legal scholar
  • Helped establish the legal basis for regarding sexual harassment as unlawful sex discrimination
  • Views pornography as a violation of civil rights and a form of sex discrimination


Catharine MacKinnon was born on October 7, 1946 in Minneapolis, Minnesota. She earned a bachelor’s degree from Smith College in 1969, a JD from Yale Law School in 1977, and Ph.D. in political science from Yale University in 1987. She has been a visiting scholar at Harvard Law School and a number of other campuses, and currently serves as the Elizabeth A. Long Professor of Law at the University of Michigan Law School. She is also the Special Gender Adviser to the Prosecutor of the International Criminal Court.

In 1979 MacKinnon published a book contending that sexual harassment violates the prohibition against sexual discrimination as codified in Title VII of the 1964 Civil Rights Act. Her legal reasoning, as laid out in this work, was invoked by the Equal Employment Opportunity Commission in 1980 when it enacted a policy prohibiting sexual harassment.

In the 1986 Meritor Savings Bank v. Vinson case, the U.S. Supreme Court upheld MacKinnon’s legal framework in a unanimous verdict, thereby setting the precedent of recognizing sexual harassment as a form of discrimination under Title VII. The Court ruled that this transgression was “not limited to ‘economic’ or ‘tangible’ discrimination,” but rather, included “the entire spectrum of disparate treatment of men and women in employment.” Looking back on this verdict in 2002, MacKinnon expressed satisfaction over the fact that “[a] new common law rule was established.”

In 1983 MacKinnon and fellow feminist Andrea Dworkin took up a crusade condemning pornography as yet another variation of sex discrimination, and thus a violation of women's right to “equal protection of the laws” as guaranteed by the Fourteenth Amendment. In Pornography and Civil Rights: A New Day for Women’s Equality (1988), MacKinnon and Dworkin reject the claim that pornography constitutes free speech that is permitted by the First Amendment:

“Though women have been excluded from access to the means of communication, from the political dialogue, from education, from economic equity or political power; though women are forced into social silence by contempt and by terrorism; though women are excluded from participation in the institutions that articulate social policy; women are supposed to value speech rights by valuing the rights of those who have excluded them…. The power of the pornographer is the power of men. The exploitation of the woman gagged, hung, photographed, and published is the sexualized inferiority and human worthlessness of women.”

The authors go on to claim that “[t]he Constitution, including the Bill of Rights … has served to defend wrongful power and to protect inequality and exploitation”—“primarily because Blacks and women were not recognized as fully human and their inequality was built into the basic structure of constitutional law.” Because of this, write MacKinnon and Dworkin, “We need to establish a legal imperative toward equality. Without equality as a fundamental value, ‘rights’ is a euphemism for ‘power,’ and legally protected dominance will continue to preclude any real equality.”

Also in the 1980s, MacKinnon and Dworkin co-authored a series of ordinances prohibiting pornography—i.e., “the graphic sexually explicit subordination of women through pictures and/or words”—and permitting women claiming to have suffered as a result of it to sue producers and distributors of pornographic material for damages in civil court. In Minneapolis, one of these ordinances was approved by the city council but then was vetoed by the mayor. A similar ordinance was considered and approved in Indianapolis in 1984, but was subsequently declared unconstitutional by the Seventh Circuit Court of Appeals.

Though rejected in the United States, in 1992 the Supreme Court of Canada, in the case of R. v. Butler, accepted much of MacKinnon’s legal argumentation on equality, pornography and hate speech, repeatedly citing a legal brief that she had co-authored.

In a Marxist text titled Toward a Feminist Theory of the State (1989), MacKinnon writes that “[p]ornography, in the feminist view, is a form of forced sex, a practice of sexual politics, an institution of gender inequality.” She contends that the state participates “in the sexual politics of male dominance by enforcing its epistemology through law,” and that “women are raped by guns, age, white supremacy, the state—only derivatively by the penis.”

MacKinnon defines pornography not as “only words” (or pictures), but also as a form of behavior with severe consequences “in the real world, not only in the mind.” Because “protecting pornography means protecting sexual abuse as speech,” she says, “there is no way to prohibit rape if pornography is protected.”

America, MacKinnon adds, is a society “saturated” with pornography, a culture that has “created a population of men pre-primed sexually to enjoy inflicting torture” and “just waiting to commit a genocide.” Asserting that “the ultimate male bond” is “between pimp and john,” she describes men as sex-obsessed exploiters who “sooner or later, in one way or another,” inevitably “want to live out the pornography further in three dimensions.”

By contrast, MacKinnon portrays women as helpless, “screaming yet inaudible” victims who are often forced into prostitution by their poor economic circumstances.

MacKinnon considers pornography to be so insidious, that she once likened it to the Holocaust. In a 1993 PBS television interview, she implicated pornography as a causal factor in the rape and slaughter that was sweeping Bosnia at that time.

In Toward a Feminist Theory of the State, MacKinnon, expressing disdain for individual rights (free speech) as opposed to group rights (equality), declares that “[t]he law of equality and the law of freedom of speech are on a collision course in this country.” Before the adoption of the Fourteenth Amendment, she elaborates, “the Constitution contained no equality guarantee.” As a result, “the constitutional doctrine of free speech has developed without taking equality seriously—either the problem of social inequality or the mandate of substantive legal equality … [entrenched] in the Fourteenth Amendment.” According to MacKinnon, the task of legal radicals like herself is to make sure that “substantive” equality is enacted into law, and to embed the principle of equal outcomes in the American constitutional framework.

In a similar vein, New Criterion editor/publisher Roger Kimball says that for MacKinnon, “banishing pornography is only one element in a campaign to revolutionize the law and, with it, all of society.” Rejecting the notion of a level playing field and meritocracy as impossible in a sexist society, MacKinnon derides “the stupid theory of equality” under the law. She contends that because some people are disadvantaged by society's inequities, they deserve preferential treatment in order to compensate for that injustice and establish “true” equality. Thus she calls for a variety of “substantive rights” to replace the “abstract rights” guaranteed by the Constitution.

As an outgrowth of her belief that the U.S. is an irredeemably sexist (and racist) nation where justice for women (and nonwhites) is a rare commodity, MacKinnon embraces the tenets of Critical Legal Theory (CLT), which sees the country's legal system as a tool designed to oppress those demographics while legitimizing the societal inequities that enable their white male exploiters to maintain a privileged status. In an effort to shift the balance of power in favor of nonwhites, MacKinnon and her fellow CLT adherents take pains to criticize the existing legal system incessantly as a way of tearing it down and, in the process, transforming American society.

While MacKinnon feels some kinship with Marxism’s push for class equality, she is at odds with Marx’s failure to address feminist concerns. In a widely cited 1982 article, “Feminism, Marxism, Method and the State,” she writes:

“Feminists charge that Marxism is male defined in theory and in practice, meaning that it moves within the world view and in the interest of men. Feminists argue that analyzing society exclusively in class terms ignores the distinctive social experiences of the sexes, obscuring women's unity. Marxist demands, it is claimed, could be (and in part have been) satisfied without altering women's inequality to men. Feminists have often found that working-class movements and the left undervalue women's work and concerns, neglect the role of feelings and attitudes in a focus on institutional and material change, denigrate women in procedure, practice, and everyday life, and in general fail to distinguish themselves from any other ideology or group dominated by male interests.”

In MacKinnon's calculus, women who vote for conservatives in political elections do so as a result of a sort of Stockholm Syndrome that stems from having been psychologically oppressed by a sexist society throughout their lives:

“[O]ne response to inequality among women is conservatism, indeed is being right-wing. It has to do with an attempt to find an authority that's really going to work because of your own sense of powerlessness and … your commitment to the system that you've been raised in, in which you see you have no real choices.”

In a 1995 PBS interview with Ben Wattenberg, MacKinnon claimed that because women commonly fail to protect their own interests in the face of intimidation by male aggressors, a woman’s stated consent should not be the deciding factor in determining whether a man is guilty of rape. “I think ... there are forms of force that involve authority, power, where something can be rape, but it isn't always violent at that moment,” she said. “But there's always an element of force and domination going on ... in which a sexual interaction is coerced without the person who is having it wanting to have the sex.”

MacKinnon revisited this theme in a 2006 interview with The Guardian: “My view is that when there is force or substantially coercive circumstances between the parties, individual consent is beside the point; that if someone is forced into sex, that ought to be enough.... If we didn't have so much pornography in society and people actually believed women when they said they didn't consent, that would be one thing. But that isn't what we've got.”

Notwithstanding her views on female consent, MacKinnon claimed—when the scandal over President Bill Clinton’s affair with White House intern Monica Lewinsky erupted in 1998—that Clinton’s conduct did not constitute sexual harassment despite the vast power differential between the two parties, because Lewinsky had consented to the affair. In a New York Times piece, MacKinnon wrote: “On no account so far was Ms. Lewinsky sexually harassed.... [N]o one so far has claimed that Ms. Lewinsky had ‘unwelcome’ sex, which is essential to bringing a lawsuit for sexual harassment at work.”

MacKinnon's affinity for leftist Democrats did not end with Clinton. In October 2008 she wrote an editorial for the Wall Street Journal endorsing Barack Obama for president and stating: “If Congress and the states grant women explicit constitutional equality and an end to discrimination—far more likely under Mr. Obama's leadership than Mr. McCain's—federal judges will hold in their hands women's hopes for equality for generations to come.”

For additional information on Catharine McKinnon, click here.

 

 

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