The Idea of the "Private": A Discussion of StateAction Doctrine and Separate Sphere Ideology

This essay is a discussion of the formalization in law of a dichotomy between a natural, private order on the one hand, and a public sphere of state action and citizenship on the other. The discussion takes place in the context of equality rights and of the philosophical tensions that underlie the delineation of rights in general. Two legal phenomena are examined: state action doctrine as it has developed in American equal protection jurisprudence under the Fourteenth Amendment and separate sphere ideology as a rationalization for sexual discrimination. Under each doctrine, judicial denial of relief is predicated on a pre-ordained and natural compartmentalization of human experience and on a refusal to perceive the dichotomy as socially created and legally enforced discrimination. The contradictions inherent in state action jurisprudence are a microcosm of the contradictions inherent in liberal theories regarding the nature of rights and of the state. A critique of separate sphere ideology in the context of women's rights offers a macrocosmic view of social transformation. Although I shall refer largely to American jurisprudence, the underlying philosophical questions are of critical importance in Canadian judicial treatment of the Canadian Charter of Rights and Freedoms.