The Modern Feminist Movement and the Equal Protection Clause

In the 1960s legal feminists engaged in debate over whether the aim of equal justice would be better served by an Equal Rights Amendment or through judicial reinterpretation of the equal protection clause of 14th Amendment to the United States Constitution (Mayeri, 2004, p. 758). From the early 1920s the Feminist movement in the United States was divided between Alice Paul’s National Women’s Party (NWP) which focussed upon an ERA which would wipe out all legal distinctions between the sexes and a movement led by Elanor Roosevelt and others more focused on labour rights legislation (Mayeri, 2004, p.762).

Activists of the NWP campaigned nationwide and lobbied Congress on the issue of an ERA however even after more than 30 years of consistent political effort they had achieved little success. During the 1960s Pauli Murray an eminent legal scholar and civil rights activist sought to litigate through 14th Amendment in order to improve women’s rights. Murray attempted to draw upon the experiences and strategies of the African American civil rights movement to re interpret the 14th Amendment in favour of women’s rights.

She sought to achieve the spirit and aims of the ERA without the political divisions which it created through the reinterpretation of the 14th Amendment. The activist nature of the Supreme Court bench during the 1960s held out hope of an equitable reinterpretation of the 14th Amendment. Naturally the advocates of an ERA saw the 14th Amendment litigation strategy as hostile and mutually exclusive to their agenda. Advocates of ERA were also associated with segregationists during the 1960s.

Title VII of the Civil Rights Act which was passed in 1964 prohibited sexual discrimination in employment relations (Mayeri, 2004, p. 769). The amendment was introduced by a segregationist, and was strangely opposed by advocates of racial civil rights. This was due to the view that the Civil Rights Act 1964 without a suitable amendment to cover women would empower black workers whilst excluding white women from civil rights protection leaving them out of the labor market.

Pauli Murray argued that both white women and black women would be disadvantaged equally in the absence of an amendment prohibiting discrimination on the basis of sex. The passing of Title VII also brought the NWP into the civil rights movement and away from their roots in the segregationist politics of the South. The initial years after the passage of the Civil Rights Act 1964 however saw uneven enforcement of the provisions of Title VII.

Developing the 14th Amendment Jurisprudence In 1965 in White v Crook civil rights activists challenged the exclusion of black women from a jury in Alabama aiming to get a favourable judicial interpretation of the 14th Amendment to the United States Constitution from the Supreme Court. A three judge panel in Alabama in 1966 decided that original intent was not an obstacle to an interpretation of the 14th Amendment to the US Constitution which included principles of sexual equality.

This form of litigation was essentially a back door entry for the principle of an ERA to be written into the United States Constitution without requiring the political consensus needed for an ERA to be implemented. However none of the jury exclusion cases of that era reached the Supreme Court which kept the perceived need for an ERA alive. The National Organization of Women endorsed the cause of an ERA in 1967, bringing a new generation of more diverse and radical feminists into a movement started in the 1920s.

However some new generation feminists were alienated from the movement due to the lack of abortion rights being included in the ERA. The late 1960s saw the emergence of a dual strategy to pursue both judicial interpretation of the 14th Amendment and an ERA. However there were certain inherent contradictions in a dual approach. As both an ERA and a favourable interpretation of the 14th Amendment were aiming at the same goal, the pursuit of one would eliminate the imperative for the other creating a catch 22 situation.

Courts would be less favourable to a liberal interpretation of the 14th Amendment if an ERA seemed imminent, whilst a suitable interpretation of the 14th Amendment would decrease the necessity for an ERA. The ERA stalled in the United States Senate in 1970. Fears were prevalent that absolute equality between the sexes as mandated in the ERA would lead to disorder including the legalization of same sex unions, women in the armed forces, changes to family law such as abolition of alimony payments, and even uni sex bathrooms (Mayeri, 2004, p.

808). Leading jurists of the time saw the ERA as a threat to the family units and largely unnecessary. In Reed v Reed 1971 the Supreme Court invoked the 14th Amendment’s equal protection guarantee to revoke a law discriminating against women, in this case an Idaho legislation which discriminated in favour of male state administrators and against females (Mayeri, 2004, p. 814). Reed was an obscure case from Idaho which legal feminists used to test the Supreme Court’s application of the 14th Amendment.

The Supreme Court declared the State of Idaho’s preference for male administrators to be “arbitrary” but did not revoke the standard of “reasonableness” for forming sex based classification under the equal protection clause of the 14th Amendment (Mayeri, 2004, p. 816). Feminist groups whilst expecting a favourable decision in the case were disappointed at the narrowness of the grounds of the decision. In 1996 the Supreme Court in United States v Virginia struck down the Virginia Military Institute’s policy of excluding female students.

Justice Ginsberg expressed the majority view that sex classifications were allowed only to rectify historical discrimination against women rather than to perpetuate such discrimination (Mayeri, 2004, p. 829). In a 6 justice majority the decision represented a victory for the feminist movement against a classic exposition of a situation which they had been fighting against from the start of the movement.

The Virginia Military Institute’s policy excluded females on the basis of out dated generalizations which have no basis modern reality, it was both arbitrary and unreasonable. In Nguyen v INS the Supreme Court in 2001 upheld immigration law which allowed the automatic naturalization of offspring of unmarried citizen mothers and non citizen fathers, whereas in the case of non citizen mothers and citizen fathers the child would have to prove paternity (Mayeri, 2004, p. 831).

A majority held that the law did not violate the 14th Amendment to the United States Constitution in that it related to two important government functions of proving paternity and allowing family relationships to develop and that differential treatment was based upon the difference inherent in the parent child relationship between children and mothers and fathers. Such distinctions were not based on prejudice but on biology and nature. The standard of ‘intermediate scrutiny’ applied in Virginia was found to be pliable in the case of Nguyen.

The Court in Nguyen interpreted the 14th Amendment to apply only to people who are ‘similarly situated’, deciding that mothers and fathers are not sufficiently similarly situated to invoke it’s protection (Mayeri, 2004, p. 831). However this decision did enforce stereotypes based both upon race and gender placing the burden of child bearing upon foreign women rather than American men, a situation which has been commonplace during war time when American service personnel father children to local women in combat zones.

Such children then have the burden to prove their paternity which the children of American mothers and non American fathers do not. The evolving jurisprudence related to the 14th Amendment and sex discrimination has provided a great deal of protection to women whilst falling short of complete legal equality between the sexes. In the Nevada Department of Human Resources v Hibbs the Supreme Court granted the Congress wide power to legislate against sex discrimination.

The 14th Amendment has been interpreted within the framework of reversing historic discrimination against women however has not reached into areas such as reproductive rights, or government autonomy in administrative decision making. This still leaves room for improvement which can only come from the political consensus which would be required for the passing of an ERA, which would provide for more comprehensive and universal equality for women.