Why the XIV Amendment does not provide women equal protection under the U.S. Constitution

 

The XIV Amendment (1868) reads:

 

“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.”

 

On the face of it, these words appear to mean all “persons” would be equally protected by the U.S. Constitution. However, since its ratification, the XIV Amendment has consistently--and most recently--fallen short of interpretation in the courts as a means of protecting women from sex discrimination. In 1868, the Amendment was intended to protect the rights of recently-freed male slaves. Moreover, in Section 2 of the XIV Amendment, the word “male” was introduced for the first time, intentionally to clarify that it did not include “females” in its provisions regarding voting privileges. While the Declaration of Independence espouses that “all men are created equal,” this inspiring statement is not found in the Constitution and, therefore, is not a legal basis for laws.

 

Following the amendment’s ratification in 1868, came the case of Myra Bradwell (Bradwell v. Illinois--1873), who was denied the right to practice law in Illinois. The state court found her legally ‘disabled’ due to her gender. The case went to the U.S. Supreme Court and the lower court’s decision was upheld. Bradwell was fully educated and licensed, yet was unable to practice law because of her sex. Clearly the XIV Amendment failed to guarantee her equal protection under the law. 

 

It would be more than a 100 years later, in Reed v. Reed (1971), that a liberal Supreme Court applied the XIV Amendment--for the first time--to prohibit sex discrimination by the state. Two years later, however, in Frontiero v. Richardson, by a vote of 5-4, the Supreme Court denied “strict scrutiny” to the issue of sex discrimination. Then, in Craig v. Boren (1976), the Court declined again to elevate sex discrimination claims to the “strict scrutiny” standard of review that the XIV Amendment was found to require for certain suspect classifications, such as race, religion and national origin.

 

In United States. v. Commonwealth of Virginia (1996), a court majority did rule that the Virginia Military Institute’s (VMI) longstanding male-only admission policy violated the XIV Amendment’ Equal Protection Clause by failing to show ‘exceedingly persuasive justification’ for its sex-based admissions policy. In this case, it was a liberal court that found against the state--not a private entity--under the XIV Amendment.

 

In United States v. Morrison (2000), a case of rape was brought against two men by their victim under the new Violence Against Women Act (1994). However, the XIV Amendment was found NOT to provide protection to the victim because the Amendment covers only state actions, not private. The Supreme Court affirmed that the XIV Amendment “erects no shield against merely private conduct, however discriminatory or wrongful,” citing Shelley v. Kramer (1948) as precedent.

 

The XIV Amendment’s failure to protect women against domestic violence continued. In 2004, Jessica Lenahan-Gonzales sued the town and police force of Castle Rock, Colorado, for failing to enforce a restraining order against her husband, which resulted in the deaths of their three children. In Castle Rock v. Gonzales, the Supreme Court found that the XIV Amendment’s Due Process Clause did not compel police to enforce a restraining order. This case brings into serious question the use of restraining orders dealing with violent men, when the enforcement of these orders is not mandatory. In Castle Rock v. Gonzales, reliance on the XIV Amendment utterly failed.

 

In the words of Jessica Neuwirth (former director of the New York Office of the United Nations High Commissioner for Human Rights and founder and director of the ERA Coalition), our existing legal framework fails to offer victims of gender-based violence effective recourse: “Historically, domestic violence and marital rape have not been recognized as criminal conduct, and even to this day distinctions in the law remain as vestiges of the deference given to men in the privacy of their homes, enabling them to perpetrate violence against women with impunity.” A proper constitutional foundation is necessary to provide legal protection against sex-based discrimination which, as Neuwirth grimly asserts, continues to deprive women “of their fundamental right to life.”

 

The Equal Pay Act (1963) and Title VII of the Civil Rights Act (1964) are our primary laws governing sex discrimination in the workplace. Because the XIV Amendment has been found to cover only state employment--not private employees--these laws have relied on the Commerce Clause of the Constitution. The loopholes under those laws include: requirements of proof of intent to discriminate by private employers and corporations; court-imposed time limits for initiating lawsuits (even though unequal pay usually develops over many years); lower pay history as a legitimate reason for paying different amounts for equal work (upheld recently in the 9th Circuit Court) and; a catchall of other requirements that favor business interests. The laws created by these acts have been weakened over the years because of these loopholes.

 

In Ledbetter v. Goodyear Tire (2007), the Supreme court, in a 5-4 decision, effectively cut off many women’s ability to seek equal pay for work, ruling in favor of business interests. While the Ledbetter Fair Paycheck Law (2009) overturned this decision, this too can be overturned by the politics of a new administration. Similarly, future reauthorization for protective legislation like the Violence Against Women Act could also be threatened. While the XIV Amendment failed to protect Lilly Ledbetter in her lawsuit, it also falls short in safeguarding against the political whims of Congress or the Executive Office.

 

In 1972, the Equal Rights Amendment was passed by Congress and then failed to be ratified by two-thirds of the states within the time limit. Since then, the courts have continued to apply heightened (so-called “skeptical”) scrutiny--not the higher “strict” scrutiny--in cases of sex discrimination. In these cases, courts required evidence that proved there was explicit “government action that differentiates on the basis of sex.”

 

Justice Antonin Scalia clearly asserted that the Constitution does not prohibit discrimination on the basis of sex when he said “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” Indeed, the Supreme Court has not found that systematic bias is in violation of the equal protection clause except where such bias is proved to be intentional. The intent requirement leaves women with no legal recourse under the XIV Amendment for many forms of discrimination.

 

Chief Justice John R. Roberts wrote “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.” Clearly, Roberts considers only race discrimination—and not other categories such as gender—to be limited by the Constitution. He recognized the original intent of the XIV Amendment when he refers to its “historic purpose”: to protect the rights of newly-freed slaves. Not women. 

 

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.

 

Much has changed since the 1970s when the Equal Rights Amendment (ERA) passed both houses of the U.S. Congress with decisiveness--and then failed to be ratified by 38 states within the time limit:

 

  1. Women are working outside the home at far higher rates, raising children alone more frequently, and there is a general acceptance of the responsibilities many women face in our modern world. Women, especially older women, are disproportionately poor.

  2. Our courts have changed. There is an increase in “originalist” ideology, whereby the literal and historic intent of the Constitution is valued more than a current “interpretation” of the Constitution (and the XIV Amendment) by the courts.

 

We need an Equal Rights Amendment to guarantee that all judges and courts, regardless of their judicial or political philosophy, have the constitutional basis to prohibit sex discrimination. Our Constitution needs to protect the rights of women, for the first time in its 230-year history.

 

 

Equal Rights Maine

A group of Mainers advocating for the Equal Rights Amendment to the Constitution

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