No constitutional equality proves we need the ERA

Dianne Post 2018
Dianne Post 2018

American Forum

When this country was founded, women had no rights. As late as 2010, then-Supreme Court Justice Antonin Scalia said in an interview that women still don’t. It wasn’t until 1971 that the court ruled women were covered under the 14th Amendment. A plethora of cases followed along two tracks: 14th Amendment equal protection and due process and Fifth Amendment due process as applied to the federal government.

In the five cases under the Fifth Amendment due process clause from 1973 to 1979, all against federal government programs, the plaintiffs – males in three cases – prevailed in four. This track record continued in 2017’s Sessions vs. Morales-Santana. The male plaintiff argued that equal protection was violated when his citizenship was denied based on his unmarried mother, who was not a citizen, rather than his father, who was but had left the U.S. five days before his 19th birthday, the requirement to settle citizenship for a man who had a child born out of the U.S. For an unwed woman who had a child born out of the U.S., the requirement was having lived in the U.S. one year at any time in her life.

From 1869 to 2000, 19 cases were brought regarding women’s rights under the 14th Amendment. Not until 1971 did the court hold that women are covered under the equal protection clause.

The issue of whether a classification based on sex was inherently suspect and held to a higher standard like other suspect classifications such as race, ethnicity and national origin was decided in a 1976 case. In that case, females could drink 3.2 percent beer at 18, but males had to wait until they were 21. The reason given by the state was that boys had bad driving records, and preventing accidents was an important government objective. The new test was birthed when the court ruled that, “Previous cases establish that classifications by gender must serve important governmental objectives and be substantially related to achievement of those objectives.”

Expansion of women under the 14th Amendment came to a halt with a 1979 ruling. The case was a challenge to the absolute lifetime preference in job allocation for veterans. The court held that such a preference did not violate the 14th Amendment because it was gender neutral, based on service not sex. The court did for the first time state that, “Classifications based upon gender, not unlike those based upon race, have traditionally been the touchstone for pervasive and often subtle discrimination.” Yet the court found that no discriminatory purpose is evident and therefore no violation exists.

A 1982 case held that prohibiting men from enrolling in a woman-only school of nursing violated the Equal Protection Clause. In addition, the court added a stronger burden to uphold the classification. The state now had to show an “exceedingly persuasive justification” for the exclusion of men in order to survive constitutional scrutiny. They mentioned that gender was like race. It seemed as if the court was inching closer to finding that gender classifications – like race classifications – require strict scrutiny.

That hope came tumbling down a scant two years later in 1996 in a decision written by Justice Ruth Bader Ginsberg. The U.S. argued and the court agreed that restricting entrance to the Virginia Military Institute to males violated the Equal Protection Clause. The “exceedingly persuasive justification” standard was used for the third time, the first time for women. But Ginsberg made it clear that sex was not race and they were not elevating the standard to strict scrutiny.

From 1869 to 2000, women brought 10 cases under the 14th Amendment, and men brought nine. Of the 10 that women brought, they won six. Of the nine that men brought, they won seven. Even the fight for women’s rights benefits men more than women.

It’s clear that litigation, statutory changes and the 14th Amendment won’t bring equality to women. As of 2011, 35 countries had an equality provision for women in their constitution; 49 a nondiscrimination provision for women, and 29 countries had both. The U.S. remains the outlier.

The Equal Rights Amendment is the only method left to ensure women’s constitutional equality. Two states remain to obtain the needed 38 state ratifications. Let’s get it done.

Dianne Post works in international law primarily doing gender-based violence work including training, drafting and analysis. She was a family lawyer for 18 years, representing mostly battered women and abused children, before beginning a career .


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