“Every constitution written since the end of world war II includes a provision that men and women are citizens of equal stature. Ours does not. I have three grand daughters. I’d like them to be able to take out their constitution and say, ‘Here is a basis premise of our system, that men and women are persons of equal stature’. But its not in there. We just have the equal protection clause, which everyone knows was not meant in the 1860s to change anything with regard to womens status. Women didn’t get to vote until 1920.”
Over the past few decades, in large part because of the public awareness raised by the women’s movement of the blatant legal inequities between women and men, quite a number of laws explicitly discriminating on the basis of sex have been rescinded or amended.
The different levels of review, as demonstrated by the Nguyen case, mean that the protection from discrimination offered by the Equal Protection Clause is not equal for all classes of people. “Suspect” classifications such as race and religion are judged by the highest standard of “strict scrutiny,” while sex has been granted an “intermediate” standard of review as “quasi-suspect” classification. If the Nguyen case had been judged with the strict scrutiny to which racial or religious discrimination is subjected, the Supreme Court would almost certainly have required the same treatment of US Citizen fathers and U.S Citizen mothers with regard to the transmission of citizenship to their children.
The law provided that if there was more than one person equally entitled to administer the state, “males must be preferred to females.”
Traditionally women have been victimized by sex discrimination, while men have more often been the perpetrators. But the underlying principle of providing additional benefit or protection for those who have been historically subject to discrimination is one of the several themes running through the jurisprudence. Another theme is the right to equal treatment, which is blind to difference between the sexes, including their relative treatment historically. It is ironic that the heightened standard of scrutiny for sex-based discrimination comes from a case about men’s right to buy beer, brought not only by a young man adversely affected by the law but also by a vendor whose interest was in selling beer. this scenario is very different from he one in which women are given secondary rights to men in the appointment of estate administrators, or in which women’s rights to employment benefits for their husbands are narrower than men’s rights to employment benefits for their wives, based on stereotypes of dependency that assume wives are dependent on their husbands, and husbands are not dependent on their wives.
Men as well as women have benefited from the 14th amendment’s guarantee of equal protection in some cases, but the jurisprudence has evolved in such a way that it is largely blind to the inequity between the sexes and the history of discrimination against women, even though that history is what led to the recognition of the need for heightened scrutiny of laws with distinctions based on sex.
In Weinberger v. Weisenfeld, a 1975 case the Supreme Court struck down a provision of the Social Security Act which allowed widows but not widowers to collect special benefits while caring for minor children. The court found the provisions to be a constitutional violation of the rights of men under the Equal Protection Clause. Much of the case law circles around the tension between support for protective measures recognizing the disadvantage generally faced by women, on the one hand, and the demand for equal treatment between men and women, on the other, to ensure that similarly situated men are treated the same as women.
Treating women and men as equal classes, subject to equal treatment, may level the playing field and help a few players who already have what they need to compete. But for the vast majority of women who have substantially less to begin with than men, a level playing field will serve only to keep them at the same lower level.
The jurisprudence to date in explicit distinctions drawn between women and men is convoluted. It reflects differing lines of argument in differing lines of thought, which makes finding coherence challenging. While the Supreme Court has used The Equal Protection Clause of the 14th amendment to open some doors to some women, the court has not consistently recognized the realization of actual equality between women and men as the end goal. An Equal Rights Amendment that establishes this goal as a matter of constitutional right could go well beyond the limits of the 14th amendment by facilitating the use of the law to promote sex equality as well as to end discrimination against women.
#MarchForERA #NatalieWhiteArtist #EqualMeansEqual