公法评论

Sovereign Virtue: The Theory and Practice of Equality
By Ronald Dworkin
Reviewed by Ina R. Bort
New York Law Journal
October 31, 2000

What is equality, and why do we care? Is equality among citizens a necessary prerequisite to legitimate government? If so, is equality achieved only when every citizen is permitted to share equally in the nation's wealth, no matter what? Or are there more sensible brands of equality - brands, for instance, that can take popular morality and personal responsibility into account? Is not an even better model of equality one that takes personal preferences into account? Are you and I equal only if we have equal amounts of welfare, defined, in turn, by our individual conceptions of our personal success? Or is equality of resources the ultimate goal? A distribution system, that is, where no one person is envious of the bundle of resources that any other person enjoys? If equality of welfare is instead the better version of equality, can a government possibly
implement laws that would bring it about? Is it not impossible to compare subjective definitions of personal success? More importantly, is not the entire question doomed by circularity, as each individual's perception of success is founded entirely upon assumptions about the amount of resources that he or she has at any given time?

These are but a few of the questions that Ronald Dworkin takes on in Sovereign Virtue: The Theory and Practice of Equality. And these are the easy ones. Not content to outline what he believes to be the most desirable model of equality (at risk of ruining the suspense, it is equality of resources for which Mr. Dworkin casts his vote), Mr. Dworkin goes on to explain the complex relationship between equality and liberty, rejecting the long-held idea that the two by definition conflict.

It may become apparent by now that this is no light read. The chapters that comprise Part I (gathered, in intimidating fashion, under the simple title: "Theory"), are dense and assume fluency, at a very minimum, in the principles of microeconomics, the theories of Isaiah Berlin and John Rawls and the collected works of Ronald Dworkin. Starting out one's readings in legal theory with Part I of Sovereign Virtue is a bit like picking up "A La Recherche du Temps Perdu" to learn basic French.

In stark contrast to Part I, Part II, "Practice," is comprised of highly readable chapters in which Mr. Dworkin deftly demonstrates why the questions explored in Part I lie at the heart of some of the most divisive issues of our day.

Of these chapters, the most interesting is the last: "Sex, Death, and the Courts." The author begins this chapter by asking, "May a 'moral majority' limit the liberty of individual citizens on no better ground than it disapproves of the personal choices that they make?" Specifically, should decisions regarding sexual behavior be made individually, with each person deciding for his or her own life out of his own conviction," or collectively, "so that the convictions of the majority are imposed even on those whose most basic beliefs are thereby compromised?"

Mr. Dworkin's writing is at his best in his discussion of the debate over Colorado's Amendment 2. That statute, adopted in 1992 by statewide referendum, was originally proposed as an amendment to legislation enacted in certain Colorado cities in the early 1990s, that protected homosexuals from discrimination in housing, employment, and health and welfare services.

Amendment 2, entitled "No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation," provided that "[neither] the State of Colorado ... nor any of its agencies, political subdivisions, municipalities, or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships will constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota, preferences, protected status or claim of discrimination." As the author describes it, this provision would have had "a catastrophic effect on the political situation of homosexuals in Colorado. It would annihilate the protection that some cities had already given, and forbid any political subdivision of the state, and indeed the state itself, from enacting any protective legislation in the future. Homosexuals could thereafter secure anti-discrimination legislation only by further amending the state constitution itself, to repeal or amend Amendment 2."

The fierce and highly publicized debate surrounding Amendment 2 - which ultimately reached the courts - is a perfect illustration of the ideas at work in Mr. Dworkin's theoretical chapters, as the debate implicated notions of equality, liberty and democracy. It called upon the judiciary to pass upon the relative importance of political equality - afforded to Colorado's citizens in the form of a referendum - and the liberty interests of homosexuals, as well as their entitlement to equal treatment under the law, both of which were, by definition, compromised by the decision that the referendum produced. The statute's challengers, moreover, were called upon to decide which of these, liberty interests or entitlement to equal treatment, were more persuasive grounds for repeal of Amendment 2. They chose the latter, and grounded their challenge in the Equal Protection Clause.

As Mr. Dworkin describes it, their challenge was premised on the idea that Amendment 2 violated the Equal Protection Clause because it treated homosexuals unequally - that is, it denied them "a political opportunity - attempting to secure local legislation protecting their basic interests - open to all other groups." Stated another way, the Amendment 2 debate called upon the judiciary to determine whether "the prejudice and contempt of a ... majority was an independent defect in the proper functioning of a democracy that [was] sufficiently serious to justify heightened scrutiny of legislation that harms those who suffer from such prejudice."

Certainly the court had thought that such prejudice did not warrant heightened scrutiny in 1986, when it issued the decision in Bowers v. Hardwick and, in so doing, upheld, in the face of due process challenges, Georgia's law criminalizing sodomy between consenting adults. The Bowers court, according to Mr. Dworkin, thus held that "it is permissible for government to prohibit freedom of choice in private sexual behavior even if that behavior harms no one in any direct way, so long as the condemnation expresses popular morality."

When the challenge to Amendment 2 made its way to the U.S. Supreme Court by way of a case entitled Evans v. Romer, the opinion for the six-justice majority, issued in 1996, determined that the statute could not withstand even the most relaxed level of scrutiny, as it was not even rational. As Mr. Dworkin explains, Romer "flatly contradicted" the assumptions in Bowers. Whereas the latter validated a state's imposition of disadvantage - of infringement of liberty - upon a particular group simply because the majority's moral contempt for that group's practices so dictated, Romer determined that this was not a legitimate result, and that Amendment 2, therefore, could not exist. In so affirming the liberty interests of homosexuals, and in finding the grounds to do so in the Equal Protection Clause, the Court proved Mr. Dworkin's thesis that liberty and equality (or at least Mr. Dworkin's conceptions thereof) need not conflict.

The author also applies his theories to campaign finance reform, health care and affirmative action, issues that we have heard debated ad nauseum pending the Nov. 7 election. For many readers, Mr. Dworkin's interpretations of the debates might very well provide a valuable alternative to the sound bites of the presidential campaigns. At least those readers not already brainwashed by subliminal sloganeering.