Constitutionalism and policies toward
women: Canada and the United States
Leslie F. Goldstein*
This essay examines policy toward women in Canada and the U.S. with an eye to the
question of how much light comparative constitutionalism can shed on the differences
or similarities in those policies. It first describes the many institutional contrasts that
might lead one to expect sharp differences in policies in the two countries. It then
details both numerous parallels in gender equity policy and a half dozen or so important contrasts, attempting to explain both the striking similarities and the occasional
differences that are uncovered.
1. Introduction
Despite contrasting political histories, political institutions, and constitutional
structures—relatively sharp contrasts, in fact, in terms of constitutionalism—
both Canada and the U.S. revolutionized their policies toward women at
nearly the same time: in the final few decades of the twentieth century. In
the U.S., this happened primarily in the decade of the 1970s, and in Canada
in that of the 1980s. The similarities in policy reform are striking. In both
countries, the two most sweeping reforms were roughly the same: first, the
legalization of abortion and, second, the adoption of a higher-law rule that
legislation could not discriminate on the basis of gender except when government could show unusually strong justification for doing so. Although one
can identify a handful of important specific policy contrasts, this fundamental
similarity pervades most of the policies with particular impact on women.1
This essay will describe first the many institutional contrasts that might
lead one to expect sharp differences in the two countries’ policies toward
women. It next details both the numerous parallels in gender-equity policy
and the half dozen or so important contrasts. It then attempts to explain
both the striking number of similarities and the occasional differences thus
uncovered.
* Judge Hugh M. Morris Professor, political science and international relations, University of Delaware.
I acknowledge the able assistance of Pooja Rishi and Benjamin Cohen in navigating both the internet and
the library, and the assistance of Ran Hirschl in fine-tuning my awareness of Canadian developments. Email:
[email protected]
1
For a detailed examination of one such specific policy contrast, see in this issue Linda A. White,
Institutions, Constitutions, Actor Strategies and Ideas: Explaining Variation in Paid Parental Leave
Policies in Canada and the United States, 4 INT’L. J. CONST. L. (I·CON) 319 (2006).
ª The Author 2006. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
I·CON, Volume 4, Number 2, 2006, pp. 294–318 doi:10.1093/icon/mol006
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Constitutionalism and policies toward women
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2. Institutional differences
2.1. Constitutional history, content, and culture
Both the U.S. and much of Canada began as British colonies and, in that
sense, share a common-law heritage,2 share a common tongue, and share a
tradition of welcoming a diverse array of immigrants. But the differences
take over from there. Canada is, to a substantial degree, a bicultural state
with two official languages; although the U.S. does have a growing
Spanish-speaking population, all schoolchildren quickly learn American
English. The thirteen states of the original American Confederation voluntarily joined the tighter union formed in 1788 (although North Carolina and
Rhode Island took slightly longer than the rest to do so). Canada was federated by decision from Britain, but with the acquiescence of each province.
As of 2005, Québec has still not ratified the Constitution of 1982.3
The U.S. has had a written Constitution from the start, and the
Constitution of 1787 explicitly authorized judicial review of state laws and
constitutions4 and implicitly authorized it with regard to federal laws. The
U.S. Supreme Court first struck down a federal law in 1803 and declared
void a state law for the first time in 1810.5 Canada followed the British model
for a long time: parliamentary supremacy with no written constitution other
than the British North American Act (BNAA) of 1867. In 1875, Canada
established its own Supreme Court, but appeals still could go over its head
to the British Law Lords in the Privy Council. This nonfinal Canadian
Supreme Court had the power to police the jurisdictional boundary between
federal and provincial authority, so, in this sense, Canadians did have a
limited judicial review tradition. Still, not until 1949, practically speaking,
was Canada truly sovereign, because—up to then—the Privy Council’s Law
Lords exercised active judicial review over the Canadian court’s rulings. For
instance, in 1928–29, ten years after women received the vote in federal
elections, the Canadian Supreme Court ruled that, nonetheless, women could
not count as ‘‘persons’’ eligible to serve in the Senate; the Privy Council overrode this decision.6 During the Depression, a number of unpopular decisions
by the Privy Council, striking down several Canadian efforts to cope with
2
Québec has a civil law heritage, but so does the state of Louisiana in the U.S.
3
MICHAEL MANDEL, THE CHARTER OF RIGHTS AND THE LEGALIZATION OF POLITICS (1994). Cf. text at note
11 infra on Québec’s nonrenewal of its section 33 resistance to the whole Charter.
4
U.S. CONST. art. VI, x 2.
5
Marbury v. Madison, 5 U.S. 137 (1803); Fletcher v. Peck, 10 U.S. 87 (1810).
6
Gwen Brodsky & Shelagh Day, Canadian Charter Equality Rights for Women 13 (Canadian Adv.
Council on the Status of Women 1989). Women’s suffrage was still restricted at the provincial
level. In Québec, women could not vote until 1940. Sandra Burt, Canadian Women’s Movements,
in CANADIAN POLITICS 393–412, 397–400 (James Bickerton & Alain-G. Gagnon eds., Broadview
Press 3d ed. 1999).
296 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
L. F. Goldstein
the economic emergency, turned Canadians against the Privy Council’s
review power.7 In 1949, the Canadian Parliament amended its Supreme
Court Act to terminate appeals to the Privy Council from Canada—a decision
that the Privy Council itself upheld on appeal, thus agreeing to be put out of
business, at least in this regard.8
It was not until 1982 that Canada acquired its own independent, or
‘‘repatriation," Constitution, in the Constitution Act of 1982, nearly two
hundred years after the U.S. And, like its sister to the south, it also adopted
in 1982 a bill of (entrenched) rights, the Charter of Rights and Freedoms
(hereafter, Charter). Earlier, in 1960, Canada had adopted a Bill of Rights,
but the latter still honored parliamentary sovereignty and was only rarely
given force by the courts. This judicial timidity fueled much of the support
for truly entrenched rights that produced the Charter.9 The Charter explicitly
authorizes courts to strike down laws that conflict with the rights it lists, and
it authorizes individuals to bring suits to secure these rights. In sum, the U.S.
has had a Bill of Rights, enforceable by judicial review, for more than two
hundred years, while Canada has had one for some twenty years.
The two North American constitutions differ not only in history but also in
content. The U.S. Constitution asserts clearly that state laws or constitutions,
if judged to clash with federal law or the federal constitution, must give way.
From the start, the U.S. Constitution was understood similarly to limit even
federal laws.10 Canada’s Constitution is different. Its section 33 contains the
famous ‘‘notwithstanding’’ provision, which essentially allows any provincial
government or the federal government to announce that it is going to keep in
place for five years a given, duly adopted law,‘‘notwithstanding’’ its (judicially
determined) clash with certain provisions of the Constitution, namely, the
provisions (in section 2 and sections 7 through 15) that list the civil liberties
and equality rights of Canadians. The point of the five-year limit is to allow
electoral democracy to have a say in the question, because elections must
be held at least every five years. Then section 33 may be reinvoked for
another five years and, presumably, as often as desired thereafter. This
provision is the Charter’s concession to the older approach of parliamentary
sovereignty. And it is a huge concession.
(Although a huge concession in formal terms, Canadian legal scholars
emphasize its virtual desuetude since 1990. Saskatchewan invoked it in
1985 to block the impact of a feared Supreme Court ruling—one that did
7
MANDEL, supra note 3, at 10–12.
8
PETER H. RUSSELL, THE JUDICIARY
(Mc Graw-Hill Ryerson 1987).
IN
CANADA: THE THIRD BRANCH
9
OF
GOVERNMENT 335–340
CHARLES EPP, THE RIGHTS REVOLUTION 160–162 (Univ. of Chicago Press 1998); Brodsky & Day,
supra note 6, at 13–17.
10
See, e.g., THE FEDERALIST No. 78 (Alexander Hamilton).
297
Constitutionalism and policies toward women
not come to pass. Québec invoked it to protect its entire statutory code in
1982, in protest at the new Constitution’s taking effect without Québec’s
ratification.11 But when this Québec law expired after five years, Québec’s
Parliament did not reenact it. Québec invoked section 33 again in 1988 to
protect its law requiring prominence of French on signs, but then it immediately revised the law, and in 1993 enacted a new language law that omitted
the ‘‘notwithstanding’’ clause.)12
Finally, there is an argument in the literature, put forth by such scholars as
Seymour Martin Lipset, that Canadian constitutional culture also differs from
U.S. constitutional culture. Americans are said to be more individualistic and
rights oriented, while Canadians are thought more communitarian and deferential to governmental authority as the collective voice of the people.
While there is certainly merit in this observation, it should not be exaggerated. John P. Roche has argued persuasively that it was not until well into the
twentieth century that the U.S. became a society wedded to judicially
enforced individual rights.13 Throughout the eighteenth and nineteenth
centuries, U.S. freedom largely amounted to the freedom ‘‘to find,’’ among a
variegated plurality of communities, ‘‘a community where one’s views would
not engender wrath’’ and move there.14 Only after the U.S., in the twentieth
century, became urbanized, industrialized, and thereby homogenized, did the
federal judiciary establish juridical norms of nationwide individual rights.15
Still, even conceding Roche’s point, this gives the U.S. a fifty-year head
start on Canada in the direction of individual rights enforcement by the
11
An Act Respecting the Constitution Act, S.Q. ch. 21 (1982) (Can.).
12
Peter W. Hogg & Allison Bushell, The Charter Dialogue between Courts and Legislatures,
35 OSGOODE HALL L.J. 75, 83–84 (1997). See also Janet L. Hiebert, Parliament, Courts, and Rights:
Sharing the Responsibility for Interpreting the Charter, in CANADIAN POLITICS, supra note 6, at
185–205, 199–200 and JANET L. HIEBERT, CHARTER CONFLICTS: WHAT IS PARLIAMENT’S ROLE?
(McGill-Queen’s Univ. Press 2002); MANDEL, supra note 3, at 95–96; FREDERICK L. MORTON & RAINER
KNOPFF, THE CHARTER REVOLUTION AND THE COURT PARTY 160–165 (Broadview Press 2000). Tsvi
Kahana and Beverly Baines, who cites him, insist that section 33 has, in fact, been invoked a total
of seventeen times, mostly in Québec, of which five have been occasions enacting pension laws
allowing women an earlier retirement age (60) than men (65). This last was reenacted most
recently in 2001. Apart from the fact that this pension adjustment could well be upheld by the
Supreme Court on the grounds of the affirmative action permission in section 15, it is curious
that most legal scholars ignore most of these seventeen. Tsvi Kahana, The notwithstanding
mechanism and public discussion: lessons from the ignored practice of Section 33 of the Charter,
44 CAN. PUB. ADMIN. 255 (2001), cited in Using the Canadian Charter of Rights and Freedoms to
Constitute Women, in THE GENDER OF CONSTITUTIONAL JURISPRUDENCE 48–74 (Beverly Baines & Ruth
Rubio-Marin eds., Cambridge Univ. Press 2005).
13
John Roche, The ‘‘Tradition’’ of Freedom, in ASPECTS
Clinton Rossiter eds., Cornell Univ. Press 1958).
14
Id. at 147.
15
Id. at 129–162.
OF
LIBERTY 129–162 (Milton Konvitz &
298 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
L. F. Goldstein
judiciary, so Lipset’s characterization of the difference in cultural tradition
regarding rights retains a certain merit. And one can still observe considerable evidence of a more communitarian outlook in Canada’s constitutional
culture—for instance, a long tradition of government funding of schools
run by different religious denominations, a detailed list of rights of Aboriginal
peoples in the Charter (in section 35), and a long tradition of concern with
group language rights.16
2.2. Political party structure
Since the Civil War of the 1860s, the United States has had a stable two-party
system, consisting of center-right Republicans and center-left Democrats.
Canada, by contrast, has had a multiparty system, comprising three or four
parties, with two traditionally dominant groups, the Liberals (center-left)
and the Conservatives (center-right) during this period. Although both
countries have single-member representative districts, with plurality-winner
electoral systems—arrangements said to be conducive to two-party
systems—Canada has developed geographically concentrated minority
parties. Thus, several elections in the twentieth century have produced
minority governments for Canada, as did the most recent election, in June
of 2004.17 As of 2005, the two additional parties with substantial numbers
of seats in Parliament are the Bloc Québecois and the New Democratic Party
(NDP, formerly called the Co-operative Commonwealth Federation [CCF], a
democratic socialist formation). The NDP is a party with a long history in
Canada. The Bloc Québecois emerged in the late twentieth century, as did
the Reform Party, a populist party of the right, strong in the western region.
The latter held several dozen seats in Parliament in both 1993 and 1997;
eventually (after an interval as the Canadian Alliance Party), it merged
with what at the time was called the Progressive Conservative Party to
form today’s Conservative Party.18
2.3. Governmental structure
The final reason to expect policy differences between the two countries is that
the Canadian Constitution establishes—and the country has had since
at least 1867—a parliamentary, albeit federal, system of government, with
a prime minister chosen from the ranks of the party with the most votes in
the House of Commons. The prime minister forms a cabinet and his or her
ministers govern the country. Strict party discipline may be imposed, and
16
This impressionistic observation is fortified by systematic research. Ran Hirschl, Constitutional
Rights Jurisprudence in Canada and the United States, in CONSTITUTIONAL POLITICS IN CANADA AND THE
UNITED STATES 63–88 (Stephen Newman ed., SUNY Press 2004).
17
David E. Smith, Analysis & Commentary: Canada’s Electoral College June 25, 2004, www.cbc.ca/
canadavotes/electionnight/index.html (last visited Feb. 6, 2004).
18
LISA YOUNG, FEMINISTS AND PARTY POLITICS 15–16, 132–134 (Univ. of Mich. Press 2000); id.
Constitutionalism and policies toward women
299
the party in government can be held responsible for its programs by the voters
to a far greater degree than is feasible in a presidential system, where the
legislature might be dominated by an opposing party. Under such conditions
it is easy for both parties to avoid responsibility for problems that arise. While
Canada does have a Senate, consisting of persons appointed to terms that end
only at age seventy, senators are expected to go along with the Commons and
generally do so. Thus, one would expect to find in Canada a set of government
policies considerably more responsive to majoritarian sentiment at both the
federal and provincial level than in the U.S., where power is fragmented by
the structure of political institutions.
3. Policies toward women
3.1. Two bold strokes: Abortion and stricter scrutiny of discrimination
3.1.1. Abortion
In the U.S., states began liberalizing permission to obtain abortions in the
decade of the sixties, but they were still tightly regulated and treated as crimes
until four states—New York, Washington, Alaska, and Hawaii—legalized
them outright in 1970. At this point the trend in legislative action ceased,
setting the stage for Roe v. Wade (1973).19 The U.S. Supreme Court in Roe
established the rule that states could ban abortions only of a viable fetus,
and, even then, only if the abortion were not needed to preserve the life or
health of the mother. ‘‘Health’’ is understood to include mental health.20
This new rule struck down the existing abortion restrictions in the other
forty-six states.21
The Canadian Supreme Court declared Canada’s abortion law unconstitutional in R. v. Morgentaler (1988),22 and, although the Charter of Rights and
Freedoms figured in the reasoning, the holding relied on procedural grounds
and would have permitted the recriminalization of abortion in a more
carefully drawn statute. The Progressive Conservative government under
Brian Mulroney then tried in two different parliamentary sessions to secure
a bill that would have permitted abortion only when needed for mental,
psychological, or physical health. This compromise position was opposed by
both prochoice and prolife contingents in Parliament. It garnered a majority
19
Roe v. Wade, 410 U.S. 113 (1973).
20
U.S. v. Vuitch, 402 U.S. 62 (1971).
21
LESLIE F. GOLDSTEIN, THE CONSTITUTIONAL RIGHTS OF WOMEN 334–375 (Univ. of Wisc. Press 1988).
Several states had already lost their abortion restrictions in rulings of lower courts in the period
from 1969 to 1972. Roe v. Wade sealed the fate of these decisions.
22
R. v. Morgentaler, [1988] 1 S.C.R. 30.
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L. F. Goldstein
in the House, by means of strict party discipline, but failed in the Senate by a
tie vote, where party discipline was relaxed.23
3.1.2. Stricter scrutiny
The U.S. Supreme Court struggled for five years trying to figure out how to
cope with a situation where Congress, with margins greater than nine to
one, had voted for a constitutional amendment (the Equal Rights Amendment) that would accord ‘‘equality of rights’’ in all laws regardless of gender,
and where more than two-thirds of the states were also ratifying but where
ratification would not reach the required three-fourths. Finally, at the end
of 1976 the Court addressed the situation in Craig v. Boren,24 by replacing
the formally toothless ‘‘reasonableness’’ test for gender discrimination with
a new rule: the constitutional command,‘‘No state shall deny to any person
the equal protection of the laws,’’ means, in connection with gender
discrimination, that discriminatory state laws will be upheld only if they
can be shown to be ‘‘substantially related’’ to the furtherance of an ‘‘important government interest.’’ (The same rule applies, by virtue of the implications in the phrase ‘‘due process of law,’’ to the federal government.)25
Andrews v. Law Society of British Columbia26 is the parallel case in Canada
but derives from a far more detailed constitutional text. The Canadian Charter
of Rights and Freedoms, adopted in 1982, has three sections that bear on the
subject, sections 15, 28, and 1. Section 15, which was not slated to take effect
until 1985, guarantees ‘‘equal benefit of the law . . . , in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability’’ and gives permission for affirmative
action. Section 1 subjects all the rights to ‘‘such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society.’’
And section 28 exempts the principle of gender equality from the permission
granted by the ‘‘notwithstanding clause’’ (section 33) to federal and provincial governments to override and re-override, for periods of up to five years,
provisions in the Charter.27
In Andrews, the Canadian Supreme Court applied these provisions to
gender discrimination, using a test first announced in R. v. Oakes
23
MORTON & KNOPFF, supra note 12, at 162–164. In 1993, the Canadian Supreme Court followed
up with ‘‘Morgentaler II’’ (R. v. Morgentaler, [1993] 3 S.C.R. 463, striking down an attempt by
Nova Scotia to limit all abortions to hospitals on the grounds that criminal law in Canada is
exclusively within the authority of the federal government).
24
Craig v. Boren, 429 U.S. 190 (1976).
25
GOLDSTEIN, supra note 21, at 109–180.
26
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
27
Cf. Baines, supra note 12 (suggesting at 51, note 15, that section 28 is of ‘‘questionable value’’
since the Supreme Court has said that it is a guide to interpretation rather than a substantive
rights protector, citing Native Women’s Association of Canada v. Canada, [1994] 3 S.C.R. 627).
Constitutionalism and policies toward women
301
(1986).28 Under this Oakes test, the complainant initially must show that a
Charter right is somehow abridged. The government then may have the
law nonetheless upheld if it can show (a) that the law pursues a ‘‘pressing
and substantial’’ objective (substantial enough to justify interfering with
the protected right); (b) that the means chosen are rationally connected
to the goal; (c) that the means infringe on the right in the least drastic
feasible way; and (d) that the infringement on the right is proportional to
the societal benefit gained by the infringement.29
Thus, in both countries, their respective Supreme Court subjects genderdiscriminatory legislation to much stricter scrutiny than the normal run of
laws but will uphold the discrimination if the government can present a
strong enough rationale for it.
3.2. Specific policy parallels
One sees similarities between the two countries not just in the big picture but
also in the numerous details concerning their policies toward women. For
instance, in both countries, despite the formal legality of abortion, antiabortion violence and harassment against patrons and staffs of clinics render
the provision of abortion geographically scarce, indeed, unavailable in many
parts of the land. Abortion providers have been shot in Canada on three
occasions and stabbed in the back once, as of 2003. The shootings suspect
is serving a life term in the U.S. for killing an abortion provider there. The
Canadian provider who was both shot and stabbed has retired from offering
abortions.30
Additionally, both countries cracked down on employment discrimination
in the decade of the seventies. In the U.S., the Civil Rights Act of 1964
prohibited companies of twenty-five or more employees and unions with
twenty-five or more members from discriminating on the basis of ‘‘race, color,
religion, sex, or national origin’’ in ‘‘compensation, terms, [or] conditions’’ of
employment.31 However, the act was to be enforced only through investigation and attempts at conciliation by the Equal Employment Opportunity
Commission (EEOC); by individual, and privately funded lawsuits brought by
aggrieved parties, which were expensive, difficult, and rare; or by lawsuits filed
by the U.S. attorney general in the rare cases ‘‘of general public importance.’’
28
R. v. Oakes, [1986] 1 S.C.R. 103.
29
Troy Riddell, Precedents, Statutes and Legal Reasoning, in LAW, POLITICS AND THE JUDICIAL PROCESS IN
CANADA 418–420 (Frederick L. Morton ed., Univ. of Calgary Press 2002); Peter W. Hogg, The LawMaking Role of the Supreme Court of Canada: Rapporteur’s Synthesis, 80 CAN. B. REV. 171, 172–173
(2001); and Frank Iacobucci, The Supreme Court of Canada: Its History, Powers and Responsibilities,
4 J. APP. PRAC. & PROCESS 27, 36–37 (2002); Hogg & Bushell, supra note 12, at 84–87.
30
Childbirth by Choice Trust, Abortion in Canada Today: The Situation Province-by-Province
(June 2003), available at www.caral.ca/uploads/caralreporti.pdf (last visited Feb. 6, 2006).
31
x 703(a) (Title VII) of the Civil Rights Act of 1964, 42 U.S.C. x 2000e-2(a).
302 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
L. F. Goldstein
In March 1972, the enforcement picture changed markedly. The EEOC
obtained the authority to sue employers for violations of the act, and
educational and governmental employees were added to the coverage of the
act, from which they earlier had been explicitly exempted.32
In Canada, both the provinces and federal government adopted legislation
in the 1950s forbidding discrimination in pay and employment on the basis of
religion, ethnicity, and race, and, at about the same time, these governments
began adopting legislation that similarly covered gender-based discrimination.33 By 1979 all the provinces had adopted some version of human rights
statutes forbidding these and other forms of discrimination and had
established specialized commissions and tribunals to implement them.34
This expansion of protection was triggered by the 1970 Report of the Royal
Commission on the Status of Women, which called for, among other things,
an end to employment discrimination against women. The report stimulated
the formation in 1972 of the National Action Committee on the Status of
Women (NAC), a broad alliance of second-wave women’s organizations. At
first, the NAC’s employment concerns focused on improved provision of childcare and on ending overt job discrimination against women. By 1975, it had
embraced the goal of equal pay for work of comparable value, and, in fact, the
women’s movement of Canada was notably more successful in pursuing this
policy than was its U.S. counterpart.
Both countries also had remarkably similar histories concerning policies
that discriminated against pregnancy as compared with other medical
disabilities. For Canada, compare Bliss v. Attorney-General of Canada (1979)
with Brooks et al. v. Canada Safeway (1989).35 Bliss involved a complaint
about a difference in the minimum of service for eligibility for general unemployment compensation and the minimum for eligibility for unemployment
benefits due to pregnancy. Canadian law prohibited collection of general
unemployment benefits in the last eight weeks of pregnancy and the first
six weeks after birth, but it allowed for collection of pregnancy leave benefits
for that time period, assuming eligibility. Bliss met the first eligibility requirement but not the second, so was denied all unemployment benefits for the
time period in question. The Canadian Supreme Court ruled in Bliss that
this system did not deny ‘‘equality before the law,’’ as all pregnant people
were treated alike, and it was reasonable for the government to use its benefits
system to encourage pregnant women to leave the workforce.
32
GOLDSTEIN, supra note 21, at 501; BARBARA S. DECKARD, THE WOMEN’S MOVEMENT 178–179
(2d ed. Harper & Row 1979).
33
The federal rule of equal pay for equal work in (the small fraction of industries under) federal
law was adopted in 1956. Burt, supra note 6, at 401.
34
35
Brodsky & Day, supra note 6, at 34, 43.
Bliss v. Attorney-General of Canada, [1979] 1 S.C.R. 183; Brooks v. Canada Safeway Ltd.,
[1989] 1 S.C.R. 1219.
Constitutionalism and policies toward women
303
This decision was seen as one of the targets of new ‘‘equality’’ wording in
the 1982 Charter of Rights and Freedoms, which had been approved in each
house of Canada’s Parliament, ratified by every province except Québec, and
approved in the U.K. Parliament. (The other judicial target of the
Charter’s equality provisions was a precedent on Aboriginal women, Canada
v. Lavell, described below.) The Charter did not mention pregnancy, but in
contrast to the earlier Bill of Rights, which had decreed equality ‘‘before the
law,’’ the Charter mandates both ‘‘equality under the law’’ and ‘‘equal benefit
of the law.’’ Widely understood as overturning Bliss, this wording was so
applied in the first Bliss-like case to come along, Brooks v. Canada.36 In
Canada, general medical leave benefits, depending on the employer, could
be higher than the state-provided maternity leave benefits, for which
pregnant women were eligible as of the tenth week prior to expected delivery.
Brooks and her coplaintiffs had argued, among other things, that 85 percent
of Canadian women workers will become pregnant during their employed
years, so this reduction in the benefits level available to pregnant women
clearly hurts women as a group. They won their case.37
In the U.S., Geduldig v. Aiello (1974) and G.E. v. Gilbert (1976) had ruled
that neither the constitutional mandate of equal protection of the laws nor
the legislative prohibition of gender discrimination in the ‘‘terms, conditions,
or privileges of employment’’ prohibited state or private employers from
offering health insurance plans that excluded maternity costs, while providing coverage for every other imaginable reason for hospitalization, even
voluntary cosmetic surgery.38 The Court viewed these as discriminations
against ‘‘pregnant persons’’ rather than against ‘‘women’’ in general. Congress overturned these decisions by the Pregnancy Discrimination Act in
1976.39
After a rape shield law regarding a complainant’s sexual history in Canada
was struck down by the Supreme Court,40 Parliament refined the shield in a
new law (section 276), in 1992.41 In the U.S., where criminal law comes
36
Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219.
37
SHERENE RAZACK, CANADIAN FEMINISM AND THE LAW 31, 82–84 (Second Story Press 1991);
Brodsky & Day, supra note 6, at 14–17; MORTON & KNOPFF supra note 12, at 37–38; EPP, supra
note 9, at 179.
38
Geduldig v. Aiello, 417 U.S. 484 (1974); G.E. v. Gilbert, 429 U.S. 125 (1976).
39
Pregnancy Discrimination Act, 42 U.S.C. x 2000e(k) (2006).
40
R. v. Seaboyer, [1991] 2 S.C.R. 577.
41
Hogg & Bushell, supra note 12, at 119. In 1995–1999, a parallel point-counterpoint of judiciallegislative dialogue transpired over the matter of a rape accusee’s right to demand access to therapeutic counseling records of the rape complainant. The Supreme Court first struck down as
unconstitutional the legislative restrictions on such access, in R. v. O’Connor, [1995] 4 S.C.R.
411, and Parliament then enacted a refined version of the restriction (Bill C-46), one that tracked
concerns expressed by the four-justice minority of O’Connor and one praised by LEAF as an
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L. F. Goldstein
under state rather than federal authority, states generally adopted these
shield laws in the seventies. In both countries, police also improved their
treatment of victims reporting rapes.
In Canada, where criminal law is a federal matter, other reforms included
laws to protect the privacy of rape victims with respect to media publicity, and
to restrict, both judicially and legislatively, the availability of a defense based
on an honest though erroneous belief that the victim consented. Honest belief
as to the consent of the victim now can be a valid defense only if it is not based
on negligence and the consent is not induced by wielding power over the victim.42
In the U.S., rape law varies by state but additional reforms that have been
widely adopted at the state level have included allowing for prosecution of
marital rape and eliminating extraneous requirements that the victim’s
testimony be corroborated in specified respects, subject to the general rule
that guilt must always be proved beyond a reasonable doubt.43
Leniency toward battered women who kill their batterers began in Canada
in the case of R. v. LaVallée (1990), upholding the acquittal on self-defense
grounds of an abused wife who shot her husband in the back and permitting
consideration of testimony on the battered-wife syndrome.44 In the U.S., the
following transpired:
In October of 1990, shortly before he left office, Governor Richard Celeste
of Ohio issued a mass clemency of 25 battered women who had been
convicted of killing or assaulting the man in their lives. This set off
what has since been dubbed the ‘‘clemency movement.’’ Governor
William Schaefer of Maryland granted clemency for eight similar inmates in 1991. The women who were freed were ones who had been
convicted in trials where the judge had not permitted testimony presenting the fact that they had been battered. By the end of 1992, governors
in a total of seven states had granted clemency to 38 women convicted of
assaulting their life partners after having been battered by them.45
acceptable ‘‘second best’’ to their preferred absolute shield approach. The Court then upheld the
refined version in R. v. Mills, [1999] 3 S.C.R. 668. CHRISTOPHER MANFREDI, FEMINIST ACTIVISM IN THE
SUPREME COURT: LEGAL MOBILIZATION AND THE WOMEN’S LEGAL EDUCATION AND ACTION FUND 112–148
(Univ. of B.C. Press 2004).
42
Bill C-49 (1992); R. v. Sansregret, [1985] 1 S.C.R. 570; cf. R. v. Esau, [1997] 2 S.C.R. 777;
ROBERT IVAN MARTIN, THE MOST DANGEROUS BRANCH 125–148 (McGill-Queen’s Univ. Press 2003).
43
LESLIE F. GOLDSTEIN, CONTEMPORARY CASES IN wOMEN’S RIGHTS, 258–259 (Univ. of Wisc. 1992);
Lisa R. Eskow, The Ultimate Weapon? Demythologizing Spousal Rape and Reconceptualizing its
Prosecution, 48 STAN. L. REV. 677 (1996); Kelly C. Connerton, The Resurgence of the Marital Rape
Exemption: The Victimization of Teens by their Statutory Rapists, 61 ALB. L. REV. 237, 284 (1997).
44
R. v. LaVallée, [1990] 1 S.C.R. 852.
45
GOLDSTEIN, supra note 43, at 276.
Constitutionalism and policies toward women
305
In both the U.S. and Canada, sexual harassment came to be treated as a variant of gender discrimination in employment through a combination of administrative guidelines and judicial rulings. The cases in which this treatment
emerged were Meritor Savings Bank v. Vinson (1986), ruling that the 1964 Civil
Rights Act prohibition of gender-based discrimination in the terms or conditions of employment also forbade gender-based harassment in workplaces;
Robichaud v. Canada (Treasury Board) (1987), holding employers liable for workplace harassment under antidiscrimination law; and Janzen and Govereau v.
Platy Enterprises (1989), ruling that the Manitoba law prohibiting gender discrimination in employment applied to on-the-job sex-based harassment.46
All the states in the U.S. adopted no-fault divorce in the decade of the
seventies.47 The Canadian Parliament adopted The Divorce Act in 1986,
adding to the old, fault-based system the option of a ‘‘marital breakdown’’
divorce for any couple after a one-year separation.48 The act allows for
gender-neutral child support claims and for alimony (or spousal support)
claims against either spouse.49 Canadian courts of two different provinces
upheld male-only child support laws for unmarried fathers against genderequality challenges on the grounds that under the Charter, section 1, it was
a ‘‘reasonable limit’’ (on the right of gender equality), being ‘‘demonstrably
justified’’ by gender differences in childbirth and by the need to identify fathers of nonmarital children so that the public would not have to support their
children.50 So far as I know, nonmarital child support enforcement laws in
the U.S. have not been challenged as gender discrimination. Alimony laws
in the U.S. were rendered gender-neutral by a Supreme Court decision in
1979 under the requirement of ‘‘equal protection of the law.’’51
Both countries allow for affirmative action to ameliorate gender disadvantage. In Canada, this occurs through explicit constitutional mandate, in
section 15 (2) of the Charter, and in the U.S., by way of Supreme Court
interpretation.52
46
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Robichaud v. Canada (Treasury Board),
[1987] 2 S.C.R. 84; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; GOLDSTEIN, supra note
21, at 552–562; Brodsky & Day, supra note 6, at 35; MARTIN, supra note 42, at 85; RAZACK, supra
note 37, at 107–109.
47
DEBORAH RHODE, SPEAKING OF SEX 179–186 (Harvard Univ. Press 1997).
48
SYLVIA BASHEVKIN, WOMEN ON THE DEFENSIVE 85 (Univ. of Chicago Press 1998).
49
Divorce Act, R.S., ch. 3 (1985).
50
Shewchuk v. Ricard, [1986] 4 W.W.R. 289 (B.C.C.A.); Friesen v. Gregory, [1986] 55 Sask. R.
245 (Unif. Fam. Ct.); Brodsky & Day, supra note 6, at 57; RAZACK, supra note 37, at 87–89.
51
52
Orr v. Orr, 440 U.S. 268 (1979).
See, e.g., Michael M. v. Sonoma County, 450 U.S. 464 (1981) (allowing teen statutory rape
to be a crime committed only by males on the grounds that aim of statute was to prevent teen
pregnancy, and fear of pregnancy already disproportionately deters/burdens females);
306 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
L. F. Goldstein
And in both countries, the courts have had difficulty coping with the
tension between the individual rights of Aboriginal women to equal protection of the law and the group rights of the native tribes to maintain cultural
traditions that deny equal treatment to women. In the U.S., one of the cases
posing this problem was Santa Clara Pueblo v. Martinez (1978).53 There the
Supreme Court permitted, essentially on sovereign immunity grounds, a
Native American tribe’s gender-discriminatory rules concerning whose
offspring may retain tribal identity when applied to an out-marrying female
Native American; in this context, this immunizing of the tribal authority
from judicial challenge cost Martinez governmental health benefits that
might have saved her daughter’s life.54
In Canada, Attorney-General of Canada v. Lavell (1974)55 garnered a good
deal of negative attention, which stimulated interest in adopting a corrective
Charter of Rights. In Lavell, the Canadian Supreme Court rejected a request to
override, on Bill of Rights grounds, a tribal rule denying Indian status to outmarrying female members but not to males who married out.56 After this, the
Canadian Parliament did alter its Indian Act to mitigate the inadequacies of
the Court decision. The 1985 legislation Bill C-31 restored Aboriginal status
to such women and gave them a right to apply for tribal membership. Note
that reinstatement is not guaranteed; thus, men who out-marry and lose
nothing remain comparatively advantaged.57
Beyond these policy similarities, one can observe similarity in policymaking dynamics: (a) many of women’s most prominent gains came at the
hands of unelected judges; (b) legislatures, too, introduced many major
reforms; and (c) in both countries the legislative branch sometimes outdoes
the Supreme Court in its desire to offer progressive policies for women. In
the U.S., after the Supreme Court ruled that existing law did not require
Califano v. Webster, 430 U.S. 313 (1977) (upholding allowing women a more generous averaging technique to calculate Social Security pension, to compensate for underpayment of females
in the job market); California Federal Savings & Loan v. Guerra, 479 U.S. 272 (1987) (allowing
state law mandating pregnancy leave even from employers who gave no other disability leaves, as
a way to allow women equal opportunity to become parents without job loss); and Johnson v.
Transportation Agency, 480 U.S. 616 (1987) (allowing affirmative hiring plan by employers
who had no females working in particular kinds of jobs, in factual setting with some contested
evidence of outright prior gender discrimination).
53
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
54
AYELET SHACHAR, MULTICULTURAL JURISDICTIONS 18–20 (Cambridge Univ. Press 2001).
55
Attorney-General of Canada v. Lavell and Isaac v. Bedard, [1974] S.C.R. 1349.
56
MANDEL, supra note 3, at 356–357, 376–377; EPP, supra note 9, at 179.
57
BASHEVKIN, supra note 48, at 81, 84, 85. The alteration came only after a 1981 decision
(Lovelace v. Canada) by the U.N. Human Rights Committee declared the law a violation of the
International Covenant on Civil and Political Rights, on the grounds that it denied her access
to her native culture. SHACHAR, supra note 54, at 20.
Constitutionalism and policies toward women
307
certain health care benefits for maternity, Congress quickly amended its law
to add that requirement. In Canada, the Supreme Court ruled that Jeanette
Lavell did not have a legal right to Aboriginal status that a man in her
situation would have had; Parliament thereafter amended the Indian Act to
improve the situation of such women. Indeed, (d) even the litigation picture
in the two countries is similar in that men more often than women will
litigate to obtain gender-equity benefits.58
4. Policy differences
One does see, nonetheless, a handful of significant differences between the
two countries in their policies toward women.
(1) In Canada, antipornography legislation promoted by certain feminist
groups succeeded in becoming law, as did legislation banning hate speech
against such disempowered groups as women and racial minorities;59 in
the U.S., such legislation was declared unconstitutional, even though legislation prohibiting pornography involving children was upheld by the U.S.
courts.60
(2) Canada allows judicial orders keeping the name of a rape victim out of
the public press, whereas the U.S. Supreme Court threw out such a law on
freedom-of-press grounds. Canada allows not only orders keeping victims’
names out of the press but also judicial orders to bar the press and public
from the court room in certain rape cases.61
(3) Most of the provinces of Canada and the federal government have
adopted a policy of equal pay for public employees across gender lines for
58
On U.S., Judith A. Baer, Women’s Rights and the Limits of Constitutional Doctrine, 44 W. POL. Q.
821 (1991); on Canada, Brodsky & Day, supra note 6, at 56–61, App. C.
59
R. v. Keegstra, [1990] 3 S.C.R. 697 (upholding legislative ban on hate speech), and R. v. Butler,
[1992] 1 S.C.R.452 (upholding ban on ‘‘obscenity’’ understood as ‘‘undue’’ depictions of sex that
are ‘‘degrading or dehumanizing’’ or that contain ‘‘crime, horror, cruelty [or] violence’’).
Frederick L. Morton & Avril Allen, Feminists and the Courts: Measuring Success in Interest Group
Litigation in Canada, 34 CAN. J. POL. SCI. 55, 66 (2001). Cf. Little Sisters Book and Art Emporium
v. Canada [2000] 2 S.C.R. 1120 (finding nonobscene some lesbian erotica). MANFREDI, supra note
41, at 79–82.
60
Hudnut v. American Booksellers’ Association, 475 U.S. 1001 (1986). On child pornography,
see N.Y. v. Ferber, 458 U.S. 747 (1982). On hate speech legislation, see R.A.V. v. St. Paul, 505
U.S. 377 (1992) (declaring it an unconstitutional restriction of freedom of speech).
61
Compare Florida Star v. B.J.F., 491 U.S. 524 (1989) (declaring void law that prohibited press
from publishing rape victim’s name), with Canadian Newspapers Co. v. Canada (AttorneyGeneral), [1988] 2 S.C.R. 122 (upholding law that instructs trial judge to prohibit disclosure of
rape victim’s name or identifying information, upon victim’s request), and Canadian Broadcasting
Corp. v. New Brunswick (Attorney-General), [1996] 3 S.C.R. 480 (upholding law that allows judge
to close the courtroom to the press and public in sensitive sexual assault cases). MARTIN, supra
note 42, at 145–146; RAZACK, supra note 37, at 114–119.
308 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
L. F. Goldstein
work of comparable value (‘‘pay equity’’ or ‘‘comparable worth’’ policy); in
the U.S., only six states of the fifty have such a policy. Moreover, in two of
the biggest provinces of Canada, Ontario and Québec, pay equity is also
required in the private sector, as it is in the roughly 10 percent of the private
sector under federal law (banking, transportation, and communication).62
Nowhere in the U.S. is it required for private employees.
(4) In Canada, because all health care costs are provided for by the government, the costs of therapeutic abortion are, at least in principle, governmentally funded. There does seem to be some question, however, about how fully
this policy is implemented.63 The United States government provides health
care costs only to the needy, excluding abortion costs, and fewer than twenty
of the fifty states provide for the latter costs out of state funds. (Still, these
same twenty are the states in which more than three-quarters of the
abortions in the country are performed.)64
(5) Canada has eliminated gender discrimination in laws concerning
whose relatives count when determining citizenship eligibility, while the
U.S. has not. In Canada, following the Napoleonic system, citizenship had
gone to a father’s children but not a mother’s.65 Parliament largely
62
PAY EQUITY TASK FORCE, PAY EQUITY: A NEW APPROACH TO A FUNDAMENTAL RIGHT, FINAL REPORT
2004, chs. 2 and 4 (2004); RAZACK, id. at 28–29; BASHEVKIN, supra note 48, at 38–39. The
six states are Iowa, New York, Oregon, Wisconsin, Minnesota, and Washington. Mark
R. Killingsworth, Comparable Worth and Pay Equity: Recent Developments in the United States, 28
CAN. PUB. POL’Y 171 (2002).
63
In Canada, after the 1988 Morgentaler decision, some of the provinces continued restrictive
practices within their hospitals to determine which abortions were ‘‘medically necessary,’’ but
the vast majority of hospitals in Canada (as of 2003 more than 80 percent) have no abortion services available. Currently, if abortions are performed in hospitals, provincial health insurance
programs must cover the costs. In October 1995 the federal Health Minister mandated that provinces that did not reimburse the costs of medically necessary abortions at clinics would lose federal transfer payments. As of June 2003, five provinces (New Brunswick, Nova Scotia, PEI,
Manitoba and Québec) were not paying the full cost of abortions in clinics, and four of them
were being subjected to lawsuits. Only Newfoundland, Ontario, British Columbia and Alberta
were covering the full cost of abortions performed in clinics. Saskatchewan allows no nonhospital
abortion clinics but pays for out-of-province clinic abortions and for in-province hospital abortions. Even in parts of the country where abortion services are available, staffing is so limited
that waits for an abortion can be as long as two weeks to (in Manitoba) six weeks. MANDEL, supra
note 3, at 431–433.
64
For U.S. abortion funding decisions, see GOLDSTEIN, supra note 43, at 28–32. As of July, 2004,
seventeen states were providing funding for medically needed abortions for the poor; www.
aclu.org/reproductiverights/lowincome/12516res20040721.html (last visited Feb. 6, 2006).
(These are the states where 80 percent of abortions take place.) It is informally reported that in
states that do not officially reimburse for the costs of abortions, doctors sometimes simply list
them as medically needed ‘‘D & C’’s (dilation and curettage) so as to enable the patient to obtain
reimbursement, and these do not count in official abortion statistics.
65
Ayelet Shachar, Children of a Lesser State, in NOMOS XLIV: CHILD, FAMILY AND THE STATE (Stephen
Macedo & Iris Marion Young eds., NYU Press 2003).
Constitutionalism and policies toward women
309
eliminated this discrimination in 1985, and the Supreme Court eliminated
lingering remnants of it in 1997.66 The U.S. has preserved gender discrimination in both its immigration laws and laws on the citizenship of offspring of
Americans born abroad. These laws prefer the nonmarital children of
American mothers as compared with American fathers and have been upheld
by the Supreme Court.67
(6) In Canada, as a result both of constitutional amendment, in the form of
the Charter of Rights and Freedoms, and Supreme Court interpretation of that
document, an effects test for discrimination in laws was adopted. In other
words, if a law has a disproportionately negative impact on women, whether
the negative impact was intended or not, the law will be subjected to the stiff
Oakes standard to determine its constitutionality.68
The U.S. differs. The U.S., like Canada, does use an effects test to implement
its antidiscrimination employment law, which prohibits employment
practices that ‘‘would deprive or tend to deprive’’ people in protected groups
of equal employment opportunities.69 However, the U.S. Supreme Court ruled
that, in measuring statutes against the ‘‘equal protection’’ constitutional
requirement, the test as to whether they count as discrimination—thus
triggering stricter scrutiny—requires more than a discriminatory effect.
66
The 1985 reform covered persons born abroad after 1977 of Canadian parents. Benner v.
Canada (Secretary of State), [1997] 1 S.C.R 358, struck down the gender discrimination as applied
to offspring of Canadians born prior to 1977 on the grounds that it lacked rational basis. The
Canadian Immigration and Refugee Protection Act of 2002 speaks in gender-neutral terms,
treating ‘‘common law partners’’ and (same gender) ‘‘conjugal partners’’ as well as ‘‘dependent
children’’ as ‘‘family’’ members for immigration purposes. See www.cic.gc.ca/english/pub/
imm–law.html#highlights (last visited Feb. 6, 2006).
67
The Court relied on Congress’s plenary power over foreign relations and the view that mothers
can be more readily identified than fathers. Fiallo v. Bell, 430 U.S. 787 (1977) (upholding the discrimination as to preferred immigrant status, before the days of DNA testing); Miller v. Albright,
523 U.S. 420 (1998) (upholding the discrimination as to the conferral of citizenship by birth, in
the post-DNA period); and Nguyen and Boulais v. I.N.S., 533 U.S. 53 (2001) (upholding the discrimination as to conferral of citizenship by birth even as to a child raised in the U.S. by his father
where there was no practical doubt as to the authenticity of fatherhood).
68
The Andrews court said that to rule whether law treated people as ‘‘equal before and under the
law’’ and honored their ‘‘right to the equal protection and equal benefit of the law,’’ as required
by section 15(1), judges had to consider not only the ‘‘content of the law’’ but also ‘‘its purpose
and its impact.’’ For interpreting this principle, the Canadian Supreme Court borrowed from its
jurisprudence on the provincial Human Rights Act, which had targeted employment discrimination in the private sector, e.g. Ontario Human Rights Commission and O’Malley v. SimpsonsSears [1985] 2 S.C.R. 536, 551, to hold that ‘‘a rule . . . which has a discriminatory effect upon
a prohibited ground on . . . employees’’ will count as discrimination, whether the discrimination
was intentional or not. (Emphasis added.) On these standards the Andrews court was unanimous.
See RAZACK, supra note 37, at 100–107; MANDEL, supra note 3, at 348 ff.; MORTON & KNOPFF, supra
note 12, at 37–38, 67–68.
69
Dothard v. Rawlinson, 433 U.S. 321 (1977). Title VII of the 1964 Civil Rights Act, i.e.,
42 U.S.C. x2000e-2[a]. Emphasis added.
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L. F. Goldstein
There must be evidence that the discriminatory effect was intentional, rather
than an accidental by-product of a law pursuing legitimate goals.70 This
difference means that certain laws that would be upheld in the U.S. would
be struck down as discriminatory in Canada.
(7) The Canadian government since 1971 has provided paid maternity
leave to salaried women,71 and since 1990 has supplemented this with
additional weeks of paid parental leave that can be used by either parent;
the total paid leave is fifty weeks.72 In the U.S., employers by law must treat
pregnancy-triggered disability at least as well as they treat other temporary
disabilities. Beyond that, specific employer policies on paid disability leave
may vary. However, Congress, in the 1993 Family and Medical Leave Act,
mandated that governmental employers and private ones with at least
50 employees must allow up to twelve weeks (unpaid) leave in any fifty-two
week period to care for a newborn or newly adopted child or a seriously ill
family member. This difference between a paid leave and a mere guarantee
that one may return to work is a stark one.
Still, to a political scientist, attentive to the differences in the two countries’
legislative institutions, political-party structure, and constitutional history,
that there are so many similarities as to policy outcomes and only about a
half dozen substantial differences is surprising.
5. Why the similarities? Why the differences?
Or, why did the dog, constitutionalism,
not bark but only whimper?
I have laid out a puzzle here. In the context of constitutionalism as a
whole—constitutional history, the constitutional arrangement of political
institutions, constitutional culture—as well as in terms of the extraconstitutional structure of political parties, one would expect to see considerable
differences between Canada and the U.S. What I found, in terms of policies
toward women, struck me as largely similar, rather than different. Why
such a degree of similarity? Should one conclude that constitutionalism is
not as important as other factors in shaping policy outcomes?
70
Washington v. Davis, 426 U.S. 229 (1976) (imposing intent test to decide whether a racially
neutral, but impact-nonneutral, law is racially discriminatory for test of unconstitutionality),
and Personnel Administrator v. Feeney, 442 U.S. 256 (1979) (imposing same with respect to
gender). Neither gender discrimination nor racial discrimination will be upheld unless the state
can show unusually strong justification, but the formal test is even more strict for race (must
be necessary for attaining a compelling government interest) than for gender (must be substantially related to an important government interest).
71
Employees whose employer provides a more generous paid disability leave are free to avail
themselves of those benefits.
72
Linda White, supra note 1, details the etiology of each policy.
Constitutionalism and policies toward women
311
One could argue, of course, to the contrary that there is no puzzle—that
constitutionalism did, in fact, have precisely the impact one would have
expected, since Canada had followed a procedurally correct constitutional
creation process under its preexisting constitutional structure, the BNAA of
1867. The Canadian constitutive power—that collection of institutions in
the U.S. figuratively called ‘‘the People,’’ as in the preamble of the U.S.
Constitution—is what adopted the Constitution Act of 1982, with its Charter
of Rights. Moreover, whatever feminist reforms Canada put into place in the
decades before and after the Charter’s adoption, also followed constitutionally
correct procedures. This argument would say that the lesson to be derived
from this comparative exercise is that to expect constitutional structures
and traditions to shape not merely procedures but also substantive outcomes
is to ask too much of constitutionalism. Perhaps this should be our broader
conclusion, but, if so, the adopters of rights-entrenched constitutions around
the world may be in for a surprise.
What, then, did produce the marked similarity in the feminist reforms of
Canada and the U.S.? The major urban centers, which is to say, the centers
of intellectual life, of Canada—from Vancouver to Ottawa to Toronto to
Montreal are all relatively near the U.S. border. Visits by professors and legal
activists, across the border, for intellectual exchange are easy and frequent. A
couple of cross-national influences from the U.S. are readily observable. But
when one pushes further to discern the sources of the success of those
influences, one must acknowledge the impact of certain global, historical
patterns that seem to underlie these North American trends.
5.1. Cross-national influence no. 1: U.S. women’s movement
The conclusion is unavoidable that influence from the U.S. women’s
movement significantly shaped the Canadian experience. In the beginning,
when the issue was women’s suffrage, the Canadians achieved reform first.
Canadian women obtained the federal vote nationwide two years before
U.S. women achieved the Nineteenth Amendment. But the second-wave
feminist movement of the late twentieth century in the U.S. preceded its
Canadian counterpart by just about a decade and prefigured the Canadian
version in several respects.
In the U.S., the trigger point is generally identified as President John
F. Kennedy’s having formed, at the urging of Esther Peterson of the U.S.
Women’s Bureau, the Commission on the Status of Women in 1961. Its
1963 Report, in turn, precipitated the establishment of similar state
commissions in all fifty states by 1967, as well as a National Citizen Advisory
Council on the Status of Women and an Interdepartmental Committee on the
Status of Women. Also in 1963, Betty Friedan published The Feminine
Mystique, which argues that well-educated affluent housewives were bored
with their lives as suburban homemakers and social-secretary adjuncts to
their husbands’ careers and needed more out of life and should be seeking it.
312 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
L. F. Goldstein
The state commissions, composed chiefly of middle class, highly educated,
and civically active women, held an annual national convention. At one of
these, frustrated by the inability of the state commissions to take policy
stands, some of the members decided to form NOW, the National Organization for Women. NOW (with Betty Friedan as its first president) held its formative national convention on October 29, 1966. This government-stimulated
networking then bore further fruit in the form of additional U.S. women’s
lobbying organizations in 1968—the Women’s Equity Action League
(WEAL), Federally Employed Women, and Human Rights for Women; and
three important litigating organizations in 1971—the Legal Defense and
Education Fund of NOW, the Women’s Defense Fund, and the Women’s
Rights Project of the ACLU.73 Meanwhile, in the mid- to late sixties a younger
and less structured branch of the U.S. women’s movement arose with young
women involved in the student civil rights movement and the New Left.
When they tried to assert, on their own behalf, the equality principles undergirding their movements, these young women were met with contempt and
mockery from the adolescent males in charge of organizations like SNCC
(the Student Non-Violent Coordinating Committee [for the civil rights of
American blacks]) and SDS (Students for a Democratic Society).74
In Canada, parallel studies and organizations followed: in 1970, a report
from the Royal Commission on the Status of Women, which the government
established in 1969; in 1972, the formation of the National Action Committee on the Status of Women (NAC); in 1973, two new feminist organizations
(Canadian Abortion Rights Action League [CARAL] and the Native Women’s
Association of Canada [NWAC]); in 1974, the Canadian Teachers’ Federation
on Status of Women; in 1975, the Canadian Association of Women Executives; and two more in 1976, the National Association of Women in Law
(NAWL) and the Canadian Research Institute on the Advancement of
Women (CRIAW). As in the U.S., where the main litigating organizations
formed in the 1970s—the second decade of the movement’s emergence—so
in Canada, the main litigating organization for women did not form until
1985, known as the Women’s Legal Education and Action Fund of Canada
(LEAF).75
This has been a discussion of starting points—the U.S. movement
continued to flourish through the seventies and early eighties and, similarly,
the Canadian movement through the eighties and nineties. To say that the
start of the U.S. movement in the sixties likely propelled the Canadian movement of the seventies is not just to infer causality from coincidence. There are
parallels in organizational formats between the two movements, population
73
DECKARD, supra note 32, at 342–49; EPP, supra note 9, at 52–53.
74
DECKARD, id.
75
Burt, supra note 6, at 401–406.
Constitutionalism and policies toward women
313
propinquity, and the availability of U.S. cable TV and radio stations to many
Canadians. The evidence of scholarly influence or even active personal
involvement of U.S. legal feminists in the Canadian movement is well
documented. Sherene Razack’s history of LEAF’s influence contains an
introductory chapter laying out the theoretical groundwork of Canadian
feminism that cites seventeen works by U.S. feminists and seven by
Canadians. Razack remarks that one of the LEAF leaders noted in her diary,
in 1981, observations on the fate of U.S. women’s legal defense funds, and
that U.S. scholar Elizabeth Wolgast is cited in a 1985 governmental report
on the Charter of Rights. Melissa Haussman’s book comparing the two
countries’ abortion movements notes that Morgentaler directly incorporates
language from Roe v. Wade and that both prolife and prochoice organizations
in the two countries have cross-border ties. U.S. feminist Catharine
MacKinnon served as a consultant for the LEAF factum (brief) on both the
Keegstra (hate speech) and Butler (obscenity) cases.76 Still, these observations
do not address the question what propelled the U.S. movement and why the
movement was so successful in both countries, as well as in many other parts
of the industrialized world.
5.2. Global force no. 1—What caused feminism?
Obviously a complete answer to this question is beyond the scope of this essay
but one can point to certain global forces likely at work. Some forces
commonly cited as fertile ground for feminism are technological: longer life
spans enabled women to spend more years in the paid labor force, and the
development of the birth control pill led to smaller families, freeing women
up for more years in that labor force, where, even as late as 1970 in the
U.S., they faced rampant discrimination. The affluence of post–World War
II society enabled families to educate daughters as well as sons, and welleducated people are more likely to think of work as a fulfilling career rather
than as just a job; hence, the Betty Friedan argument that confinement to
rearing children and to household maintenance is to be deprived of something
psychologically enriching.
One force that I have never seen cited for the rise of the women’s movement (and which I consider underrated) is the sharp rise in the U.S. divorce
rate that began in 1960. This predates the growth of the women’s movement
in the U.S. by a good seven years. The U.S. divorce rate rose sharply in the
period 1960 to 1980 and then leveled off. This rise, beginning in 1960,
produced a significant social shock. Lawrence Stone, the family historian,
has pointed out that the rate of marital dissolution in the U.S. between
1860 and 1960 was roughly constant, because the rate of dissolution due
76
RAZACK, supra note 37, at 11–23, 141–144, 36, 143 note 37; MELISSA HAUSSMAN, ABORTION
POLITICS IN NORTH AMERICA 100 (Lynne Rienner Pub. 2005); MANFREDI, supra note 41, at 79.
314 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
L. F. Goldstein
to the death of a spouse was declining steadily even as the divorce rate was
increasing steadily, such that, taken together, they balanced out. Suddenly,
and for the first time, U.S. women were facing a situation where they were
living longer after the children left home and were more likely to lose their
spouse than ever before. Now homemaking did not appear as the reliable
career it once had been.77 As the odds of one’s marriage’s lasting dipped
down toward fifty-fifty, women had reason to think much harder about the
impact on their lives of inequality in the paid workforce.
In Canada the divorce rate rose sharply from 1968 to 1969, when divorce
law was liberalized, and then continued to rise but more gradually until about
1981, when it leveled off, only to rise sharply again between 1985 and 1987
after another legal liberalization, after which it declined slightly in 1988 and
then leveled off.78 Although still much lower than in the U.S., the Canadian
divorce rate had been on the rise for years before the women’s movement
started to take off with the formation of the NAC in 1972.
As for what drove the rise in the divorce rate, one can point to the
increased secularization of the post–World War II Anglo-American world,
which presumably affected people who might have formerly had religious
scruples regarding divorce.79 Also rising levels of affluence presumably
made survival as two households more imaginable for many people.80 And
the intense consumerism of the West, after World War II, probably
strengthened the yearning for individual contentment that fuels many
77
Lawrence Stone, The Road to Polygamy, N.Y. REV BOOKS, Mar. 2, 1989: 12–15, at 13–14. This is
not to dispute the common argument that the women’s movement also fueled a rise in the divorce
rate. Maybe so, eventually, but it could not have done so before 1967 because there was no
women’s movement between 1960 and 1967. Deckard dates the ‘‘first efforts to organize radical
women’’—the more radical-sounding and more diffuse, student wing of the movement—at 1967.
DECKARD, supra note 32, at 350. And as noted, NOW started at the end of 1966. Economists have
documented both that increased earnings by women made divorce more likely and that as divorce
became more likely, women’s average earnings rose (presumably because more went to work fulltime and took more seriously the obligation to become trained for well-paying jobs). Rand W.
Ressler & Melissa S. Waters, Female Earnings and the Divorce Rate: A Simultaneous Equations Model,
32 APPLIED ECON. 1889 (2000) and citations therein.
78
The Atlas of Canada, Marital Status 1996, Figure 5. Marriage and Divorce Rates in Canada
(1967 to 1995), available at atlas.gc.ca/site/english/maps/peopleandsociety/family/
family1996/maritalstatus/marst5.jpg/image_view.
79
Economists have found empirical support for this hypothesis. Marianne A. Ferber & William
Sander, Of Women, Men, and Divorce: Not by Economics Alone, 47 REV. SOC. ECON. 15 (1989) (states
with higher percentage Baptists, Lutherans, Mormons and Methodists had lower divorce rates);
Ressler & Waters, supra note 77 (states with higher percentage of Catholics had lower divorce
rates).
80
See numerous citations documenting the link between increased female earnings and increases
in divorce cited in Ressler & Waters supra note 77. A parallel tie to increases in male earnings has
not been documented.
Constitutionalism and policies toward women
315
divorces.81 As to why the rate rose so sharply and precisely in the early sixties
in the U.S., I have found no specific answer.82
5.3. Cross-national influence no. 2: U.S. law schools and legal
scholarship, and the ‘‘Court Party’’
It is evidently not uncommon for Canadian law professors to spend a year at a
U.S. law school picking up an LL.M. degree. (Even Pierre Trudeau, leader of
the movement for the Charter, attended Harvard.) This practice shows up
in the frequency with which one encounters discussions of the work of prominent American legal scholars (e.g., Alexander Bickel, Ronald Dworkin,
Catherine MacKinnon) in articles and books by Canadian legal scholars. It
shows up also in the frequency of citations to U.S. Supreme Court decisions
by the Canadian Supreme Court.83 Evidently, part of the explanation for
both the U.S. and the Canadian women’s movements’ having relied on
litigation for their gains—at least as much as on legislative reform—is that
Canadian law professors learned in America about the important social
changes wrought in the U.S. by the Warren Court.84
But professors alone do not make policy revolutions. A number of scholars
have argued forcefully that Canada’s new willingness to pursue social reforms
through litigation relies heavily on an organized ‘‘support structure for legal
mobilization.’’ Such a structure would comprise interest groups that lobby the
legislature; interest groups that litigate and provide funding for litigation,
sometimes even government funding for litigation (as in both Canada and
the U.S. for part of the time between 1970–2000); and, finally, constituency
groups that stand to gain from the accomplishments of the foregoing. These
last would include judges who gain in policy influence, as well as wannabe
judges in the law school professoriate; and women who want the gains
pushed by the influential interest groups, that is, women who favor abortion
freedom, or who feel more secure with rape shield laws in place, or who would
gain a pay raise through pay equity programs. Charles Epp, an American
scholar supportive of rights innovations by courts, but also some Canadian
81
This argument on the cause of increased divorce is endorsed by BARBARA DAFOE WHITEHEAD, THE
DIVORCE CULTURE (Knopf 1997).
82
Annual U.S. census data show the steepening of the rate of increase began in 1963–1964. U.S.
Census Bureau, Families and Living Arrangements, available at www.census.gov/population/www/
socdemo/hh-fam.html. In 1963, President John Kennedy was assassinated and Betty Friedan’s
The Feminine Mystique was published.
83
Christopher Manfredi, The Use of United States Decisions by the Supreme Court of Canada Under the
Charter of Rights and Freedoms, 23 CAN. J. POL. SCI. 499 (1990).
84
Chief Justice Earl Warren presided over the U.S. Supreme Court from 1953 to 1969, during
which time such landmark cases as Brown v. Board of Education, 347 U.S. 483 (1954) (abolishing
racial segregation of public education), and Miranda v. Arizona, 384 U.S. 436 (1966) (requiring
that a person interrogated in police custody be informed of his due-process rights), were decided.
316 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
L. F. Goldstein
scholars—those who criticize both from the right and left Canada’s new willingness to rely on the judiciary for policy innovation—have embraced the
idea that there is, in Morton and Knopff’s provocative phrase, a ‘‘Court Party’’
pushing this agenda.85
Because the U.S. women’s movement had taken off first, with important
litigation gains throughout the 1970s,86 it makes sense that some Canadian
feminist legal scholars, had hoped for similar gains. When it became clear
(after the Bliss decision in 1979) that these gains were not to be acquired
under the 1970 Bill of Rights, feminist support grew for stronger language
in a new charter.
5.4. Global influence no. 2: The source of ‘‘rights consciousness’’
Even Canadian scholars critical of the new ‘‘rights consciousness’’ (that is, the
willingness to have courts empowered to override legislatures in order to
uphold individual rights) concede that Canadians are, on the whole, happy
to have a charter of rights enforced by courts. In fact, the public is so happy
with this new arrangement that use of the section 33 power has become
almost a dead letter even in Québec.87
No account that lays all of this development at the feet of U.S. influence
could be the whole story, because it would not explain why rights consciousness is so powerful in the U.S. and, indeed, is now flourishing the world over.
To explain this worldwide trend, I have one suggestion.
As the world becomes increasingly industrialized and urbanized, governmental bureaucracy grows to cope with modernity. As both private and
public bureaucracy grows, the individual looks for a system or institution
that will speak up for the individual and speak to another human being
who will listen.88 Even though we scholars know that courts have their
own bureaucracies and their own politics, still, the opportunity to speak up
for oneself to someone who will listen and give a fair judgment, unswayed
by political forces, is powerfully appealing.89
85
EPP, supra note 9; RAN HIRSCHL, TOWARDS JURISTOCRACY (Harvard Univ. Press 2004) and Mandel
are critics from the left; Morton & Knopff and Martin are critics from the right.
86
GOLDSTEIN supra note 21, at 601–612.
87
But cf. Kahana, supra note 12, who disputes this assertion. The examples he offers have not
involved direct clashes with the Canadian Supreme Court but are simply declarations attached
to statutes that might someday be challenged.
88
My thinking on this point was influenced by THOMAS BURKE, LAWYERS, LAWSUITS AND LEGAL RIGHTS
(Univ. Cal. Press. 2002) (exploring causes of litigiousness in the U.S.).
89
Prof. Vicki Jackson, a panelist at the conference where this essay was presented, suggested an
additional source of rights consciousness: the revelation of the horrors of Nazi Germany (and,
I would add, of Stalin’s Soviet Union) propelled a worldwide human rights movement that gave
birth to human rights covenants and transnational human rights courts. The women’s rights
movement can be viewed as one dimension of this broader movement.
Constitutionalism and policies toward women
317
5.5. Of differences and of constitutional culture
Finally, one must concede the following. There are differences between
the two countries in their policies toward women. Antiporn legislation,
anti-hate speech legislation, paid maternity/parental leave, and pay equity
legislation render Canadian policies toward women significantly different
from those of the U.S. My understanding of the sources of these differences is twofold.
One reason for differences is the relative lateness of the Canadian legal
reforms compared with the U.S. By the time Canadians were legislating and
litigating a number of these issues, the U.S. women’s movement had changed.
U.S. feminist discourse in the 1980s changed from one that stressed simple
equality of individual treatment (‘‘sameness feminism’’) to one that stressed
the need to have public policies that took account of and compensated for
women’s differences from men (‘‘difference feminism’’).90 Also, by the
1980s, Catherine MacKinnon, who for many years taught law at the University of Michigan (barely one hour from the Canadian border), was increasingly influential in the U.S. women’s movement. Her version of feminist
theory focused on structures and practices that cause men to be the dominant
group in society (sometimes called ‘‘dominance feminism’’). It is quite possible
that if Canadians had come to feminism when the voices for equal treatment,
such as that of Wendy Williams, were the only ones being heard, Canada’s
reforms may have taken a different direction. But perhaps not, because the
second big cause of policy difference matters, too.
Constitutional culture and political culture, in the end, must be accorded
their due. The fact that the Canadian government has paid parental and
maternity leave since 1971 and paid a universal ‘‘family allowance’’ geared
to family size during the period from 1945 to 199291 and that the U.S.
has never had either is, in my judgment, attributable to this difference of
constitutional/political culture. This seems to be one of those points at which
the individualist constitutional tradition of the U.S. and the contrastingly
more communitarian constitutional tradition of Canada, and its commensurately stronger labor movement and socialist movement, simply have
made a difference.
Another example of the impact of Canada’s more communitarian tradition
might be found in the set of events surrounding the Canadian case of
90
Leslie F. Goldstein, Introduction and Can this Marriage Be Saved, in FEMINIST JURISPRUDENCE 1-40
(Leslie F. Goldstein ed., Rowman and Littlefield 1992).
91
BASHEVKIN, supra note 48, at 121. Cf. essay by Linda White in this collection attributing the difference to political strategies by certain U.S. feminists committed to sameness feminism. There
certainly are U.S. feminists, influenced by such theoretical works as DOROTHY DINNERSTEIN, THE
MERMAID AND THE MINOTAUR (HarperCollins 1976) and NANCY CHODOROW, THE REPRODUCTION OF
MOTHERING (Univ. of Cal. Press 1978), who insist that for a decent and egalitarian society to
emerge, policies that foster parent-child bonds must replace policies that foster mother-child
bonds. Still, the individualist, probusiness political climate in the U.S. has great political force.
318 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
L. F. Goldstein
Re: Tomen and Federation of Women Teachers’ Associations of Ontario (1987).92
For this case, the Canadian feminist movement evidently rallied to the support of the Federation of Women Teachers—a women-only teachers union
that all female Ontario teachers were obliged by closed shop rules to join—
against a lawsuit brought by a woman who simply wanted, she said, the right
to pay her dues to the men’s teachers union instead of a ‘‘unisex union with a
ghetto mentality.’’ Her legal expenses were paid by the men’s union, which
wanted the chance to lure women members. From the accounts I have
seen, the Canadian feminists (described by Brodsky and Day as a ‘‘team of privately retained feminist lawyers and scholars’’) appeared to be all on the
women’s union side, arrayed against Margaret Tomen.93 Although Catherine
MacKinnon did present an affidavit on behalf of the women-only union, as did
many Canadian groups and individuals, I have trouble imagining such a case
arousing this kind of unified rallying of feminists against a female litigant in
the U.S., even in the post-1980s U.S. The presence of a strong individual
rights tradition in the U.S. feminist movement would likely have drawn
some feminists to each contesting side of the case, as happened in a number
of other cases on the U.S. side of the border.94
In sum, one should concede that the impact of contrasting constitutional
traditions has not been negligible, yet the power of U.S. influence to shape
policy development in Canada and the power of homogenizing global forces
operative in both countries, despite these contrasting traditions, has been
considerable.
92
[1987] 43 D.L.R. (4th) 255 (Ont. Sup. Co.).
93
RAZACK, supra note 37, at 74–80; MANDEL, supra note 3, at 403–404, 514; Brodsky & Day, supra
note 6, at 66.
94
e.g., California Federal Savings and Loan v. Guerra, 479 U.S. 272 (1987) (ruling that federal
provision requiring workers disabled by pregnancy to be treated the ‘‘same as’’ other medically
disabled workers did not clash with a state law mandating leaves for pregnant workers even
where employers offered no other disability leave). U.S. feminists were prominently divided over
the case.