(Text of the 14th Amendment workshop held during our meeting on May 30th).
How the 14th Amendment does not prohibit sex discrimination or grant to women equal protection under the U.S. Constitution
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” - 14th Amendment, due process and equal protection clauses.
Above all, the 14th Amendment addresses only State, not private, actions.
Passed in 1868, the 14th Amendment was intended to protect the rights of newly-freed male slaves
Section 2 of the Amendment specifies “males”, for the first time in the Constitution, in its provisions regarding voting privileges
First sex discrimination test of the Amendment: Bradwell v. Illinois--1873: The Supreme Court upheld a lower court decision that Myra Bradwell, while licensed and fully educated, could not practice law solely because of her gender.
100 year later:
First 'modern' case of sex discrimination: Reed v. Reed (1971) a liberal Supreme Court applied the 14th Amendment--for the first time--to prohibit sex discrimination, on the lowest, or, ‘rational basis’ of scrutiny.
The Supreme Court moves from liberal to conservative. During the Earl Warren Court (1953-1968) there was a broadening of the Equal Protection Clause of the 14th Amendment. Before then, ‘Rational Basis’ was the test put to 14th Amendment cases. Later, the only two classifications requiring ‘Strict Scrutiny’ were race and national origin. During the ‘transitional’ (from liberal to conservative) Warren Burger Court (1969-1986) the concept of ‘Intermediate Scrutiny’ developed – to be applied to ‘quasi-suspect classes’ such as gender.
Frontiero v. Richardson--1973: The Supreme Court denied “strict scrutiny” to the issue of sex discrimination
Craig v. Boren--1976: The Supreme Court again declined to elevate sex discrimination to the “strict scrutiny” standard of review which the XIV Amendment affords suspect classifications such as race, religion, and national origin
The Rehnquist Court (1986-2005) continued the movement away from the liberal years of the Warren Court. Originalism and a deference to business interests became a majority opinion which has continued to the present day in the Roberts Court (2006-present).
Justice Antonin Scalia: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”
Chief Justice John R. Roberts: “Classifications based on race are suspect and do merit careful scrutiny, in light of the historic purpose of the Fourteenth Amendment. Extension of heightened scrutiny to other ‘insular and discrete’ groups, however, represents an unjustified intrusion into legislative affairs.”
Ruth Bader Ginsberg: “If I could choose an amendment to add to the Constitution, it would be the Equal Rights Amendment,” and, “I would like my granddaughters, when they pick up the Constitution, to see that notion – that women and men are persons of equal stature – I’d like them to see that is a basic principle of our society.”
An Equal Rights Amendment would require courts to go beyond the current application of the XIV Amendment by adding sex to the list of suspect classifications protected at the highest level of strict judicial review.