Gender & the Constitution
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Gender & the Constitution

September 23, 2019

♪♪Music♪♪ We’re going to start this
morning, good morning again, speaking about a topic
that I’ve entitled gender and the constitution. It’s actually more properly to
be called sex and the constitution cause sex and
gender differ but I figured, Kyle told me you’re a fairly
unruly crowd and if I called it sex and the constitution he
wasn’t sure we’d have enough chairs. (Laughter) All your friends
would come. It’s not going to be that sort
of talking anyway. So we’re going to begin back at
the beginning, Abigail Adams whom you’ll all know, her
husband John is off in Philadelphia, Continental
Congress and she sends him a lengthy note, one of many she
sent to her husband that included the famous line,
remember the ladies as you plot independence, declaration and
the creation of a new government and in the drafting of a new
legal code. And that remember the ladies
admonition sort of persisted and we’re still saying remember the
ladies because although things have changed dramatically from
the early days and I want to do sort of a quick survey of how
women have faired under the constitution. There’s still, there’s still
areas in which work is being done and I’ll explain those to
you in a constitutional context a little bit later before I
finish. So Abigail Adams lived in the
late 18th early 19th centuries at a time when women’s rights
were determined under common law in the states, under colonies,
under statuary law to a certain extent in the colonies that then
became states and those laws traced to English law. Much of it enshrined in the
works of Sir William Blackstone who wrote a three volume
commentary on the laws of England that is a work that is
probably deserving of a separate lecture for it’s influence on
American legal development. But as Blackstone saw English
common law and the colonial courts imported the vision and
the state courts after them, women didn’t have ot to good. There were restrictions on
rights to own property, restrictions obviously on rights
to vote. You couldn’t, with a handful of
notorious exceptions. You couldn’t, there were
limitations on the ability to testify in judicial proceedings,
to form enforceable contracts, there were limitations on
criminal liability in places, maybe this was a good thing. If you stole something and your
husband was around it was his fault because you weren’t, you
didn’t have the capacity to form criminal intent because your
just a woman, right? (Laughter) So maybe that was
good. But all of this smacked the
rules that related to the rights of slaves at the time and a
number of the early, they wouldn’t have called themselves
feminists but a number of the early women’s rights advocates
including most importantly Sarah Grimke from South Carolina wrote
fairly interesting and persuasive works drawing
comparisons but between the laws of slavery and the laws limiting
the activities of women and the limitations on slaves included
those that I just eluded to as applying to women. So a women’s rights movement
started very early on in the 19th century and it attached
itself to the evolution movement. Lots of prominent women’s rights
advocates were abolitionists, were married to prominent male
abolitionists, an informal deal was eventually struck that
slavery was a greater evil. Let’s do slavery first and then
we’ll do women and so they did slavery. The abolition movement, the
civil war, the 13th Amendment abolishing slavery and then it
came time for women and historians will tell you that by
that time the male abolitionists, the spouses were
kind of tired and they just wanted to read the paper and you
know, have somebody cook for them and so the relationship
dissipated and it was left to the women themselves in the late
19th century to carry the burden themselves. There were a number of prominent
figures now much better known than they used to be. I want to talk about one, Myra
Bradwell, who applied to become a member of the Illinois bar in
the late 19th century. Myra Bradwell was qualified She
had all the requisite in office legal training. She was clearly interested in
admission and so she applied and was denied because the bar had a
rule at that time that in order to be a member of the bar you
had to be male, women couldn’t practice law. She took her case to the Supreme
Court and what’s interesting about it, well there are lots of
things interesting about it, she lost. That’s the spoiler, but her
argument was based on the privileges and immunities
clause, it’s Article 4 of the 14th Amendment. Now that’s interesting, let me
sort of set the stage for that, because of what later happened
and it’s almost illustrative of how flexible a document the
constitution is and how ambiguous frankly. But the privileges and
immunities clause of Article 4 had been in the constitution
from the beginning and then when Congress put out the 14th
Amendment it included privileges and immunities clause and so she
argued but it also had an equal protection clause which she
didn’t use because at the time folks figured that applied to
African Americans, that’s who that was for, but privileges and
immunities well that sounds like that’s for everybody. So that was the argument that
she made and she lost. The court said this right to
practice law, there is no right to practice law, it’s not a
privilege, it’s not, it doesn’t qualify as an immunity in any
sense. So they denied her claim under
Article 4 and under the, because of the partly because it wasn’t
another state that was denying her rights of Illinois
citizenship and they denied her privileges and immunities
argument under the 14th Amendment based on the slaughter
house cases which were discussed in an earlier, an earlier
lecture so she went home having lost that case. Now the privileges and
immunities argument was the stock and trade for the women’s
movement for most of this era continue to be really until,
well into the 20th century. Susan B. Anthony, another illustration
denied the right to vote and she argued because she was a woman,
she filed a federal lawsuit, didn’t go to the Supreme Court
but her argument was it’s a violation of the privileges and
immunities clause and the court said no it’s not because voting
is not a privilege or an immunity and so she lost on that
argument as well. Eventually, and this is partly
as a consequence of the (Inaudible) decision where the
equal protection clause was expanded to include Asian
Americans and a perception maybe equal protection meant more than
folks thought it did. Women’s rights advocates started
pursuing two different tracks. One was for constitutional
Amendment on the right to vote but the other was an equal
protection, equal protection trap and so a number of equal
protection cases are brought on behalf of women and some of them
are successful but curiously and we’re in the early 20th century
now, mid 20th century. The ones that are successful
tend to be cases, your not sure you really want to win or their
brought for sort of odd reasons. For instance (Inaudible)
legislation for women upheld because women bare children and
their the future of the race and they shouldn’t be on their feet
that long or you know this sort of thing, minimum wage
legislation for women upheld under the equal protection
clause but primarily because organized labor didn’t want
cheap female employees taking their jobs so let’s raise the
salary for everybody and that’ll enable more men to get jobs and
the level of review that supplied uniformly in these
cases is rational basis, the lowest level of review. Legislation that classifies
based on, on sex is upheld if it’s rationally related to a
legitimate end and that stayed true right up until the 19,
early 19, mid 1970’s when the women’s, the modern women’s
movement really took off. The civil rights movement for
African Americans had successfully, successfully
concluded at least successful in the sense that it resulted in
the passage of serious federal legislation protecting voting
rights and other civil rights. The women’s rights movement then
started pushing the litigation campaign. In 1971 a case named Reed vs. Reed was heard by the court, in
Reed vs. Reed a woman argued that a state
statute that said that if a person died without a will and
there were a couple of kids, one was male one was female, the
male got to be the executor of the estate on the assumption her
head wouldn’t be capable of dealing with the complexities of
the financial issues involved. So, some sort of designation in
the will, the male was to be the executor and the Supreme court
found that unconstitutional. It was the first major modern
women’s rights case in a modern sense that we would think about
it. So Reed vs. Reed then encouraged women’s
rights and advocates to think ok well maybe there is something to
this equal protection line. What we should do now is work to
elevate the standard of review. Remember equal cases that the
easiest legislation to pass is to pass constitutional challenge
is that subject a rational basis review, government just has to
show well this classification is rationally related or
legitimate. If your attacking discriminatory
legislation you want it to be subject to strict scrutiny just
to say its only constitutional if it’s necessary to compelling
it. That became the campaign to
elevate the level of review and this happened in two ways. Litigation, cases brought where
lawyers would argue to the court the level of review needs to be
scrutiny and simultaneously there’s an equal rights
amendment proposed to the constitution which would have
had that effect. That’s what the equal rights
amendment was supposed to do, if that were in the constitution
that would automatically raise the level of review for equal
protection claims based on sex to strict scrutiny. So both of these campaigns
happening simultaneously which turned out to be miscalculation
as it happened somewhat ironically in 1973 case of
Frontero vs. Richardson this is a woman
military officer who is upset because she wants housing and
medical assistance for her dependent spouse and the Air
Force rule is that if you’re a male officer and your dependent
spouse is female she’s presumed to be dependent on you but if
it’s the woman whose the officer and the male is the spouse then
you have to actually prove that he’s dependent on you because
you know guys work and women don’t, that’s the societal
assumption, that was the Air Force assumption. She’ll win but what’s
interesting about the decision is the way the court looks at
the level of review. She gets five votes in favor of
her claim, she gets four votes, four of those five in favor of
elevating the level of review to strict scrutiny but she’s one
vote short, came within one vote of sex classification being
strict scrutiny and that vote was Justice Powell. And Justice Powell in a
concurring opinion said essentially he was real
sympathetic with the elevation of the strict scrutiny but the
equal rights amendment was floating around the state
legislatures at that time and he thought that the better course
rather than a court declaring this to be the level of review
was to let the process work and let the state legislatures
ratifying the amendment declare this to be the level of review. Now he evidently expected that
would happen and it didn’t. Of course the 1982 termination
date came for consideration of the ERA. The ERA then collapsed that
initial run and so we didn’t get strict scrutiny, in fact 1976, 3
years later another major case come up from Oklahoma. The case of Craig vs. Boren over the Craig’s
(Inaudible) is a male aged between 18 and 21 to buy 3.2
beer at a grocery store in Oklahoma. If he’d been a girl he could
have but because he was a boy he couldn’t. He challenged that as
unconstitutional. He won, a hero for the women’s
rights movement it turns out, somewhat not him but the issue
is some what strange but the level of review that the
majority adopted was intermediate scrutiny something
less than strict scrutiny which is to say that legislation that
classifies the base of sex has to be substantially related to
an important end. So it’s easier to pass in
legislation than it is racially discriminatory legislation but
harder than most other kinds of legislation and that’s the level
of review that we have today. Now that’s an issue that’s
settled but there are issues that are unsettled and this is
what I want to close with and it’s also a bit of a perversity
in and this has been true throughout the history of
women’s right litigation under the equal protection clause and
we can go back to Myra Bradwell. Myra Bradwell lost in her claim
to be admitted to the Illinois Bar in part because the court
found it reasonable for the licensing authority to have
concluded that she shouldn’t be a lawyer because she’s a woman
because at the time in Illinois married women could not sign
enforceable contracts. You had to have your husbands
signature on the thing to before you could enforce it or it could
be enforced against you and so the court reasoned, how could
she practice law? What if she signed a fee
agreement with a client and they didn’t pay her? She’d have no way to get her
payment so it makes sense because of that fact that she
can’t practice law. Now appreciate the complexity
that it’s really, this discrimination is justified
because there’s another discrimination out there and
we’re going to assume that that ones ok and kick you down on
this one. Now that methodology and this is
the curiosity about women’s rights issues, it’s still with
us and the most recent manifestation and this I’m going
to close with, the case of Roscor vs. Goldberg, 1981 Supreme Court
decision most recent manifestation I’m going to talk
about and that’s the Supreme Court case that considered
whether the draft registration rules that say that when your 18
you have to register for the draft if your male but you don’t
if your female. If that’s constitutional under
the equal protection clause and level of review, intermediate
scrutiny is that classification substantially related to an
important end, the majority concluded yes but the reason for
that was that the draft was instituted or might be
reactivated to provide troops for combat and women aren’t
allowed to serve in combat positions. You catch the parallelism so
because of that discrimination this discrimination is justified
and I don’t, everyone has different feelings about all of
these issues but it’s fairly clear that as a matter of
constitutional law there extraordinarily tiered. You sort of, you go back to
them, you have to dig deep into them before you can come up
ultimately with a satisfactory resolution and I think these
issues are going to continue to be with us probably for some
time to come. Thank you. (Applause) (Music) Freedom 101
is made possible by generous support from Woody Young and the
University of Oklahoma Alumni Association Freedom 101 is a
program of the Institute for the American Constitutional Heritage
at the University of Oklahoma. For more videos and podcasts
visit ♪♪Music♪♪

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