Before the 1970s the Court interpreted the equal protection clause of the Fourteenth Amendment very differently for women than it did for blacks. Whereas the legal tradition clearly intended to keep blacks in a subservient position, the legal system claimed to be protecting women by treating them differently.
In the late eighteenth century, not only were women denied the right to vote, but they had few legal rights, little education, and almost no choices regarding work. The legal doctrine known as coverture deprived married women of any identity separate from that of their husbands. Circumstances began to change in the mid-nineteenth century.
THE SUFFRAGE MOVEMENT
A meeting in Seneca Falls, New York in 1848 is often seen as the beginning of the women’s suffrage
(right to vote) movement
. The meeting produced a Document of Sentiments
modeled after the Declaration of Independence signed by 100 men and women that endorsed the movement.
It took 72 years till the goal of voting rights was reached. With the passage of the Nineteenth Amendment in 1920, the suffrage movement that had begun in the early 1800s came to a successful end. The Amendment was brief and to the point: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."
However, other legal rights were not achieved until the late 20th century, partly because the Courts sought to protect women from injustice. In 1908 the Court upheld an Oregon law that limited female (but not male) laundry workers to a ten-hour workday. The Court claimed that "The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued, labor, particularly when done standing...." So biological differences justified differences in legal status, an attitude reflecting protective paternalism.
THE MODERN WOMEN’S RIGHTS MOVEMENT
Other legal rights were not addressed until the 1970s, when the women's movement questioned the Court's justification for different treatment of the sexes under the law. A unanimous Court responded by setting down a new test, the reasonableness standard
: a law that endorses different treatment "must be reasonable, not arbitrary
, and must rest on some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstances shall be treated alike."
The "reasonableness" standard was much looser than the "suspect" standard used to judge racial classifications: some distinctions based on sex are permitted and some are not. For example, a state cannot set different ages at which men and women are allowed to buy beer, nor can girls be barred from Little League baseball teams, and public taverns may not cater to men only. However, a law that punishes males but not females for statutory rape is permissible, and states can give widows a property-tax exemption not given to widowers. Other practices generally endorsed by the court but now being challenged are the acceptability of all-boy and all-girl public schools and the different rates of military officer promotions (men generally have been promoted earlier than women).
Women and the Military Draft
One of the most controversial issues defining women's rights is the implication of equal rights for the military draft. Should women be treated differently than men regarding military service? The Supreme Court decided in Rostker v. Goldberg (1981) that Congress may require men but not women to register for the draft without violating the due-process clause of the Fifth Amendment. However, other laws passed by Congress regarding differential treatment in the military have recently been challenged. For many years Congress barred women from combat roles, but in 1993, the secretary of defense opened air and sea combat positions to all persons regardless of sex. Only ground-troop combat positions are still reserved for men.
The Equal Rights Amendment
The controversial issues surrounding the military draft contributed to the ultimate failure of the Equal Rights Amendment, which read "Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex." Congress passed this amendment in 1972, but it ran into trouble in the ratification process. By 1978, thirty-five states had ratified, three short of the necessary three-fourths. Many legislators and voters worried that the ERA would require women to be drafted for combat duty. Meanwhile, the time limit for ratification ran out, the Republican Party withdrew its endorsement, and Congress has not produced the two-thirds majority needed to resubmit it to the states.
Roe v. Wade
(1973) broke the tradition of allowing states to decide the availability of abortions within state boundaries. In this case the Court struck down a Texas law that banned abortion except in cases when the mother's life was threatened. The Court argued that the due-process clause of the Fourteenth Amendment implies a "right to privacy" that protects a woman's freedom to "choose" abortion or not during the first three months (trimester) of pregnancy. States were allowed freedoms to regulate during the second and third trimesters.
The decision almost immediately became controversial, with those supporting the decision calling themselves "pro-choice" and those opposing "pro life." Although the Roe decision still holds, its critics still fight for its reversal. The Court has declared unconstitutional laws that require a woman to have the consent of her husband, but it has allowed states to require underage girls to have the consent of her parents. In the 1989 Webster v. Reproductive Health Services case, the Court upheld some state restrictions on abortions (such as a twenty-four hour waiting period between request for and the performance of an abortion), but the Court has since refused to overturn Roe.
Discrimination in the Workplace
Since the 1960s laws have been passed that protect women against discrimination in the workplace. Title VII of the Civil Rights Act of 1964 prohibits gender discrimination in employment, and has been used to strike down many previous work policies. In 1978, Congress amended Title VII to expand the definition of gender discrimination to include discrimination based on pregnancy. The Supreme Court later extended Title VII to include sexual harassment, which occurs when job opportunities, promotions, and salary increases are given in return for sexual favors.
One of the most important recent issues regarding women’s rights is equal pay for equal work. In 1983, the state Supreme Court of Washington ruled that its government had discriminated for years against women by not giving them equal pay for jobs of comparable worth to those that men held. This doctrine of comparable worth requires that a worker be paid by the worth of his or her work, not by what employers are willing to pay. Although the system is difficult to implement, many large companies have adopted sophisticated job evaluation systems to determine pay scales for jobs within their structures.
OTHER CIVIL RIGHTS MOVEMENTS
The gains made by racial groups, ethnic groups
, and women have motivated others to organize efforts to work for equal rights. Three of the most active are older Americans, the disabled, and homosexuals. All three groups have organized powerful interest groups, and all have made some progress toward ensuring their rights.
RIGHTS FOR OLDER AMERICANS
The baby boomers born after World War II are now swelling the ranks of Americans over 50, and with their numbers, discrimination against older Americans has gained the spotlight. A major concern is discrimination in the workplace.
Congress has passed several age discrimination laws, including one is 1975 that denied federal funds to any institution discriminating against people over 40. The Age Discrimination in Employment Act raised the general compulsory retirement age to 70. Since then, retirement has become more flexible, and in some areas compulsory retirement has been phased out entirely.
One of the most influential interest groups in Washington is the American Association of Retired Persons (AARP). With more than 30 million members, the organization successfully lobbies Congress to consider the rights of older Americans in policy areas such as health, housing, taxes, and transportation.
Disabled Americans make up about 17 percent of the population, and they have organized to fight discrimination in education, employment, rehabilitation services, and equal public access.
The first rehabilitation laws were passed in the late 1920s, but the most important changes came when the Rehabilitation Act of 1973 added disabled people to the list of groups protected from discrimination.
Two important anti-discrimination laws are:
The Education for All Handicapped Children Act of 1975 - This law gave all children the right to a free public education.
The Americans with Disabilities Act (ADA)- This law, passed in 1990, extended many of the protections established for racial minorities and women to disabled people. However, beginning in 1999, the Supreme Court has issued a series of decisions that effectively limit the scope of ADA, excluding conditions such as nearsightedness and carpal tunnel syndrome as disabilities.
These laws have been widely criticized because they require expensive programs and alterations to public buildings. Activists for the movement criticize the owners of public buildings and the government for not enforcing the laws consistently.
In the last two decades, homosexuals have become much more active in their attempt to gain equal rights in employment, education, housing, and acceptance by the general public. In recent years several well-organized, active interest groups have worked to promote the rights of homosexuals and lobby for issues such as AIDS research funding. Many cities have banned discrimination, and many colleges and universities have gay rights organizations on campus.
Despite, these changes, civil rights for homosexuals is still a controversial issue, as reflected in 1993 by the resistance to the Clinton administration’s proposals to protect gay rights in the military. The resulting don’t ask, don’t tell policy has not resolved the ambiguous status of gays in the military, and the Supreme Court has not yet ruled on its constitutionality.
The Supreme Court first addressed homosexual rights in 1986 when it ruled in Hardwick v. Georgia that Georgia’s law forbidding homosexual relations was constitutional. The Court based its decision on original intent (the intent of the founders), noting that all 13 colonies had laws against homosexual relations, as did all 50 states until 1961. Most recently, in Romer v. Evans (1996) the Court provided some support to homosexuals when it struck down a Colorado amendment to the state constitution that banned laws protecting homosexuals. In the majority opinion, Justice Anthony Kennedy wrote that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. The Court reversed Hardwick v. Georgia in 2003 with Lawrence v. Texas, when it held that laws against sodomy violate the due process clause of the 14th amendment. In the word of the Court,
The liberty protected by the Constitution allows homosexual persons the
right to choose to enter upon relationships in the confines of their homes
and their own private lives and still retain their dignity as free persons.
Currently, a controversial topic is state recognition of homosexual marriages and civil unions. After courts in Massachusetts upheld the right in that state in 2004, a number of homosexual marriages were conducted in other areas of the country, including San Francisco and New York City. In reaction, several states passed initiatives in the election of 2004 that banned recognition of homosexual marriages.
By the 1970s the focus of concern turned to racial balance as opposed to mere nondiscrimination, or equality of opportunity vs. equality of result
. Do civil rights required merely the absence of discrimination, or do they required that steps be taken to insure that blacks and whites enroll in the same schools, work in the same jobs, and live in the same housing?
The Courts helped define the issue in the 1978 Bakke v. California case that questioned the quota practices of the University of California medical school at Davis. Bakke, a white student denied admission to the school, sued the state, claiming reverse discrimination, since minorities with lesser qualifications were admitted to the medical school. In a divided decision, the court ruled in Bakke's favor, declaring quotas unconstitutional although allowing race as one criterion for admission to a public institution.
Many cases followed that further defined reverse discrimination. Two examples are:
United Steelworkers v. Weber (1979) - Kaiser Aluminum was sued for reverse discrimination in its hiring practices. This time the courts ruled that a private company could set its own policies, and the government could not forbid quotas in the case
Richmond v. Croson (1989) - The court struck down the city of Richmond's plan to subcontract 30% of its business to minority companies, but the decision was bitterly opposed by three members of the Court.
In 2003 in two cases involving policies at the University of Michigan, the Supreme Court’s ruling supported the constitutionality of affirmative action programs and the goals of diversity. The Court struck down the university’s plan for undergraduate admission, saying that it amounted to a quota system. However, they upheld the plan used by the law school, which took race into consideration as part of a broad consideration of applicants backgrounds.
As the United States continues to become a more and more diverse country, the nature of civil rights issues for minority groups certainly will change. Despite the changes, the pursuit of equality undoubtedly will remain a constant in the American political culture.
IMPORTANT DEFINITIONS AND IDENTIFICATIONS:
UNIT SIX QUESTIONS
1. All of the following rights are specifically protected in the main body of the Constitution EXCEPT:
a. freedom of speech
b. writ of habeas corpus
c. no ex post facto laws
d. trial by jury in federal courts
e. limits on punishment for and use of the crime of treason
2. Who has the right to suspend habeas corpus?
I. No one
III. Federal judges
IV. State judges
a. I only
b. II and III only
c. II, III, and IV only
d. III and IV only
e. II only
3. The most explicit guarantee of freedom of speech, press, assembly and petition is found in the
a. Declaration of Independence
b. First Amendment
c. Tenth Amendment
d. body of the Constitution: Article VI
e. Fourteenth Amendment
(Questions 4 and 5 are based on the following quote):
"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..."
4. The above quote is from which of the following ?
a. First Amendment
b. Schenck v. U.S. majority opinion statement
c. Fourteenth Amendment
d. 1943 Barnette case majority opinion statement
e. Smith Act
5. The statement was written with the original intention of protecting the rights of which group of people?
b. owners of small businesses
c. recent immigrants
d. former slaves
e. citizens of states with small populations
6. Which of the following provides the most important basis for the Supreme Court's role in the protection of civil liberties and rights?
a. the Constitution
b. judicial review
c. The Judicial Act of 1789
d. stare decisis
7. Which clause in the Constitution was interpreted by the activist court of the 1960s to allow Congress the power to pass laws combating discrimination?
a. the necessary and proper clause
b. the congressional rights clause
c. the full faith and credit clause
d. the establishment clause
e. the commerce clause
8. The Court ruled in the Barnette case that the flag salute violated the "wall of separation" guaranteed in the
a. establishment clause of the First Amendment
b. free-exercise clause of the First Amendment
c. due-process clause of the Fourteenth Amendment
d. freedom of speech clause of the First Amendment
e. unenumerated rights clause of the Ninth Amendment
9. Which of the following are currently treated as suspect categories?
a. I, II, and III only
b. I and II only
c. II, III, and IV only
d. I, II, III, and IV
e. II and IV only
10. The NAACP finally succeeded in its effort to get governments to act in favor of black civil rights by which of the following tactics?
a. getting courts to consider cases in which public facilities were clearly not equal for blacks and whites.
b. getting courts to rule based on the "detrimental effect" separation had on "colored children."
c. lobbying state legislatures to rescind Jim Crow laws
d. lobbying the national legislature to pass legislation making Jim Crow laws illegal
e. lobbying for a constitutional amendment that made segregation unconstitutional
11. All of the following were important milestones in bringing about the end of de jure segregation EXCEPT:
a. Plessy v. Ferguson
b. Brown v. Topeka
c. the Civil Rights Act of l964
d. the Voting Rights Act of 1965
e. the establishment of the Office of Economic Opportunity
12. What important precedent for civil rights cases was set by Bakke v. California?
a. the establishment of the principle of "equality of opportunity"
b. the declaration of "separate but equal" as unconstitutional
c. the ruling that "reverse discrimination" violates individual rights
d. the banning of de jure segregation
e. the ruling that OEO standards must be met by employers
13. "The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued, labor, particularly when done standing..."
The above quote from a 1908 decision upheld which tradition of the Court in treating cases of discrimination based on gender?
a. equality of opportunity
b. equality of result
c. the reasonableness standard
d. protective paternalism
e. the right to privacy
14. The Court decision in the 1973 case of Roe v. Wade was based most importantly on which constitutional right?
a. freedom of speech
b. the exclusionary rule
c. the right to privacy
d. the right to remain silent
e. the right to due process
15. The Court precedent of "clear and present danger" was set by which famous case?
a. Schenck v. U.S
b. Rostner v. Goldberg
c. Roe v. Wade
d. Mapp v. Ohio
e. Griswold v. Connecticut
UNIT SIX ANSWERS