Women's Less Than Full Equality Under The U.S. Constitution
by Patricia Ireland, NOW President
At a time when women are astronauts and truck drivers, it is hard to believe that the U.S. Constitution does not guarantee women the same rights as men. For most women, equality is a bread-and-butter issue. Women are still paid less on the job and charged more for everything from dry cleaning to insurance. The value of a woman's unpaid work in the home is often not taken into account in determining divorce settlements and pension benefits. When women turn to the courts to right these wrongs, they are at a distinct disadvantage because of what has and hasn't happened to the Constitution.
In 1776 Abigail Adams urged her husband, John, that he and other framers of our founding documents should, "Remember the ladies." John, who went on to become our second president, responded, "Depend upon it. We know better than to repeal our masculine systems," and women were left out of the Constitution.
Nearly a hundred years later, Congress adopted amendments to the Constitution to end slavery and provide justice to former slaves. The 14th Amendment, passed in 1868, guaranteed all "persons" the right to "equal protection under the law." However, the second section of the amendment used the words "male citizens," in describing who would be counted in determining how many representatives each state gets in Congress. This was the first time the Constitution said point blank that women were excluded. Similarly, the 15th Amendment in 1870 extended voting rights to all men -- but not to any women.
It wasn't all doom and gloom for women in the 19th and early 20th centuries, though. Two women active in world anti-slavery efforts, Lucretia Mott and Elizabeth Cady Stanton, were leaders at the first-ever "Women's Rights Convention" in Seneca Falls, N. Y., in 1848. Their "Declaration of Sentiments" included this play on the Declaration of Independence, "We hold these truths to be self-evident: that all men and women are created equal."
These women and others went on to form what became known as the suffrage movement. We now consider the suffragists the "first wave" of the U.S. feminist movement. During their long campaign to win women the right to vote, they used strategies including marches, pickets, arrests and hunger strikes. They triumphed in 1920 when the states ratified the 19th Amendment to the Constitution, which corrected the long-time injustice the 15th Amendment had put into writing.
Suffragist leader Alice Paul authored the Equal Rights Amendment (ERA) to remedy women's exclusion from the 14th Amendment. Introduced in 1923, the ERA was buried in Congress for nearly 50 years. In the late 1960s, the "second wave" of feminist activists took up Alice Paul's cause. After getting the ERA voted out of Congress, we held marches, organized boycotts, lobbied and worked on election campaigns to try to get it passed by the necessary three-fourths of the states. When an arbitrary time limit expired in 1982, the ERA was just three states short of the 38 required for ratification.
The history of Supreme Court rulings on women's rights makes clear why a constitutional guarantee of women's equality is needed. During the first 200 years of our country's history, the Supreme Court justices never saw a discriminatory law against women they didn't like. Illinois wanted to keep women from practicing law? The court in 1873 cited "the law of the Creator" as good enough reason to protect these delicate creatures -- grown women -- from being sullied by the corruption of legal and business practices.
Time and again, women were really being protected from making too much money. Oregon wanted to limit the number of hours women could work? The court in 1908 ruled that women must "rest upon and look to (men) for protection" and also -- in a contradictory view of men -- that the law was needed "to protect (women) from the greed as well as the passion of man." Michigan wanted to allow women to work as waitresses but keep them out of higher-paid bartender jobs? The court in 1948 did not see this as a violation of the Constitution's guarantee of "equal protection."
In modern times, Supreme Court rulings on women's rights have zigged and zagged, backward and forward. In a 1961 case, the justices upheld Florida's virtual exclusion of women from juries because "women are the center of home and family life." The defendant had bludgeoned her husband to death and wanted jurors who might understand how she could be driven to such a deed.
Finally, in 1971, pioneering feminist attorney Ruth Bader Ginsburg made the first breakthrough in the court's "anything goes" attitude toward sex discrimination. She convinced the court to throw out an Idaho law that automatically gave preference to a man over an equally qualified woman when appointing the person responsible for disposing of the property of someone who has died. Ginsburg went on to become the second woman appointed to serve on the Supreme Court. In 1973, the Court struck down a U.S. Air Force policy that automatically gave a married man family housing and medical allowances, while a married woman had to prove she was the "head of household," ie, that she provided all of her own expenses plus at least half of her families in order to qualify for the family benefits.
But in 1977 the justices were back to an old-fashioned view, a more narrow reading of women's equality. A bright eighth-grade girl, named Susan, who'd won science awards wanted to attend Philadelphia's all-boys Central High. It was an academically superior public school; even the school board admitted Girls High had inferior science facilities. But the Supreme Court upheld Central High's exclusion of Susan solely because she was a girl.
More recently, in a 1987 decision that is the only Supreme Court case dealing with affirmative action for women, the justices upheld a county's voluntary plan. The justices allowed the promotion to stand, and the women became the first ever promoted to one of the country's 238 skilled craft jobs. A qualified woman was promoted over a man who had a slightly higher score based on interviews with a team of three men. One of them had called the woman a "rabble rousing skirt" and another had refused to issue her the required coveralls for a previous job.
A case that was before the court in its 1996-1997 term drove home the inequities that still exist at the dawn of the 21st century. A jury had convicted a judge of violating the civil rights of five women by raping, sexually assaulting and harassing the women. An appeals court overruled the jury. Even though courts have ruled repeatedly that it is a violation a person's civil rights to be beaten by a police officer, the appeals court could not see anything in the Constitution that would put this judge on notice that it is just as wrong to rape a woman.
Without a constitutional guarantee of women's equality, even favorable rulings and good laws on women's rights can be ignored, revoked or overruled. Feminist activists have not given up on a women's equality amendment. We know that to get women into the Constitution we will have to elect a lot more people who support that idea. We look to the young women and men who are addressing issues of equality and justice in high schools across the country. We are confident that this "third wave" will soon be ready to accept the baton.
