Sameness Equality

An analysis of freedom would be incomplete if it failed to scrutinize the laws of a society that are meant to enhance and promote freedom and equality. Such analyses were undertaken by Catharine MacKinnon (Difference and Dominance: On Sex Discrimination) and Michael Warner (The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life). Their works highlight the patterns of dominance over certain groups (namely women and homosexuals) exercised within the legal structures of society presiding over everything from the military to jobs and marriage. Both authors challenge their readers to think in a way that defies convention, and perhaps become equipped to help make the world a better, freer place.
According to MacKinnon, the issue

As MacKinnon notes, sameness doctrine makes no distinction between sexes, thus allowing men to take advantage and gain “the benefit of those few things that women have historically had.” MacKinnon lists child custody and alimony under divorce law as two areas where men have “gained” equality. This equality has come at women’s expense, specifically in the instance of child custody, as any objective, genderless standard for good parenting will inherently favor men (level of income and apparent ability to start a family). Essentially, sameness doctrine favors men by making the few avenues historically reserved for women, like child custody, readily available to men, while failing to open up to women those avenues, like war, which have historically been men’s territory. Therefore, MacKinnon argues that even in a genderless context, the laws of the land will inevitably advantage men, and sameness doctrine will continue to discourage any recognition of this

Warner’s argument hinges on the distinction between shame and stigma, the former focused on the deed and the latter focused on the doer. Specifically, as Warner puts it, “shame affects one’s biographical identity,” and given enough time, it, like the memory of the deed it was tied to, will pass; stigma, on the other hand, “identif[ies] a person permanently with his or her disgrace,” and stays with the person “like a brand or a tattoo.” (Warner 27-8) Throughout his work, Warner continues to hammer home the point that stigma is for life, and its negative impact on the lives of those it touches is necessarily unavoidable. And as one might expect, the negative consequences of stigma will inevitably come into conflict with laws that reinforce