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Equal protection clause - provision in the Fourteenth Amendment to the US Constitution which prohibits states from discriminating against people arbitrarily. All Americans are, thus, guaranteed "equal protection of the laws." This amendment was passed in 1868, mainly to protect African-Americans, many of whom had previously lived under slavery, from discrimination on the basis of race.
The 14th Amendment to the U.S. Constitution, ratified in 1868, granted citizenship to all persons born or naturalized in the United States—including former enslaved people𠅊nd guaranteed all citizens 𠇎qual protection of the laws.” One of three amendments passed during the Reconstruction era to abolish slavery and establish civil and legal rights for Black Americans, it would become the basis for many landmark Supreme Court decisions over the years.
In its later sections, the 14th Amendment authorized the federal government to punish states that violated or abridged their citizens’ right to vote by proportionally reducing the states’ representation in Congress, and mandated that anyone who 𠇎ngaged in insurrection” against the United States could not hold civil, military or elected office (without the approval of two-thirds of the House and Senate).
It also upheld the national debt, but exempted federal and state governments from paying any debts incurred by the former Confederate states.
History of Equal Protection and the Levels of Review
Equal Protection Clause:
A clause in the Fourteenth Amendment that provides “No State shall…deny to any person within its jurisdiction the equal protection of the laws".
From 1953 to 1968 Earl Warren sat as Chief Justice of the Supreme Court, and the Court of this time is known as the Warren Court, just as the Court from 1969 to 1986, during which time Chief Justice Burger sat, is known as the Burger Court.
Statute of Limitations:
A State or Federal statute that sets a maximum time after which a claim can no longer be filed. When the statutorily determined time is up, “the statute has run” and the claim is barred.
In 1868, shortly after the end of the Civil War, the Fourteenth Amendment was passed to ensure fair treatment by the states of the newly-freed slaves. There is no language in the Bill of Rights which provides a federally applicable parallel to the Fourteenth Amendment's "Equal Protection" clause. The Fifth Amendment Due Process Clause, however, does for the federal government what the Fourteenth Amendment Equal Protection Clause does for state governments: it prevents unreasonable discrimination based on the use of classifications. Thus, in effect, equal protection analysis for a claim against the federal government is the same as that under the Fourteenth Amendment for a claim against a state. See Buckley v. Valeo, 424 U.S. 1 (1976) .
Although the Equal Protection Clause has been read to protect against the discriminatory use of classifications besides race and national origin, in areas outside of race discrimination, the equal protection clause was not traditionally a major consideration. Historically, so long as the legislative classification (other than race or national origin) was rationally related to the legislative purpose, courts were not likely to strike down the law as an Equal Protection violation, even if the legislative purpose was itself invalid. So, while the Due Process Clause was widely used to strike down state laws in the early 1900s, the Equal Protection Clause did not seem to carry as much power.
EXAMPLE: Southernstate passes a law requiring all women to demonstrate their financial self-sufficiency prior to filing for divorce, although men filing for divorce need make no such showing. The gender classification, not fitting into one of the two traditionally suspect classes of race or national origin, would pass muster so long as it is rationally related to some legislative purpose. Even if the stated legislative purpose was “to discourage women from divorcing their husbands,” under the old version of a “rational basis test” the law would pass, as the legitimacy of the legislative goal itself was not a consideration.
During the era of the "Warren Court" (1953-1968, when Earl Warren was Chief Justice of the U.S. Supreme Court) we saw significant changes in the fields of individual rights, through cases like Miranda v. Arizona, 384 U.S. 436 (1966) (see Police Interrogation) and important Due Process decisions such as Griswold v. Connecticut, 381 U.S. 479 (1965) (see Due Process of Law). Most importantly for our purposes here was the broadening and strengthening of the Equal Protection Clause under the Warren Court. Prior to the Warren Court, the rational basis test was used for classifications not involving race or national origin, and the old version of this test, as noted above, did not look to the legitimacy of the state goal at hand. Through the Warren Court years, two areas were seen to require a higher standard of scrutiny rather than the rational basis test. First, the concept of "suspect classifications" developed as an area in which strict scrutiny was required. This included the classifications of race and national origin, and while it leaves room for other classifications heretofore subjected merely to the rational basis test, no other classifications have been clearly labeled “suspect” by the Court. Second, the concept of "fundamental rights" developed as another area requiring application of a higher level of scrutiny.
In the upcoming sections of this chapter we will discuss just which classifications are “suspect” and which rights are “fundamental” such that the highest level of review, strict scrutiny, is applied, and which cases are subjected only to rational basis review. In addition, the Court has adopted a middle level of review for cases that fall in between the strict and rational basis scrutiny levels, called "intermediate scrutiny."
Let us start by examining the three levels of review applied in Equal Protection and Due Process cases: (1) Rational Basis Review (2) Intermediate Scrutiny (3) Strict Scrutiny.
Rational Basis Review
Today’s rational basis review is not quite the same as that discussed above. Rational basis review, in its current form, asks whether
Central State University v. American Assoc. of University Professors, 526 U.S. 124, 128 (1999) , citing Heller v. Doe, 509 U.S. 312, 319-321 (1993) . If this sounds familiar it is because the same standard is used in substantive due process cases where non-fundamental rights are at stake. There is a presumption of constitutionality and “the burden is on the one attacking the legislative arrangement to negate every conceivable basis which might support it.” Heller at 321 .
Just how far does this assumption of constitutionality go? The Court in Heller also pointed out that a state need not produce any evidence demonstrating the rationality of the classification at issue, and that when a law is passed, the legislature does not even need to articulate any purpose or rationale supporting the classification. In other words, a state can pass a law which treats different classes differently, and so long as the class is such that the law is subjected to rational basis review only, any conceivable rational basis for drawing the classification, even if it wasn’t the actual basis for the law, will suffice to pass muster under this test.
EXAMPLE: New Ridgefield, Connecticut, is an up-and-coming, bustling small city. Traffic accidents are on the rise, in part because of the high number of private automobiles which carry advertising signs for various services and products. In an effort to reduce traffic accidents, a law is passed banning advertisements on private vehicles except for services or products offered by the owner of that vehicle. Assume that rational basis review will apply. Under that standard, the law seems rationally related to the intent of reducing accidents. The fact that the law does not go further and ban all advertisements is not sufficient to strike it down under the Equal Protection Clause. See Railway Express Agency v. New York, 336 U.S. 106 (1949) .
EXAMPLE: Westernstate passes a law requiring that all automobiles initially purchased or initially registered in that state after February 1, 2014, pass certain rigorous emissions tests. Cars initially purchased and initially registered prior to that date need only meet the current emissions standards, even if subsequently purchased or registered by a new owner at some point after February 1, 2014. Because this law is rationally related to achieving a conceivable legitimate government purpose (e.g., reducing harmful emissions) it will withstand an Equal Protection claim even if no government purpose was enunciated when the law was passed.
Although a state need not provide a stated purpose when passing a law, there must be some conceivable legitimate purpose to which the law could be rationally related in order to pass the rational basis test. In determining whether there exists such a legitimate goal, courts will grant great latitude and deference to the legislature.
EXAMPLE: Southernstate passes a law which taxes out-of-state insurance companies at a rate higher than that applied to Southernstate insurance companies. The legislative history indicates that the law was intended to “foster and lend support to the insurance industry here in Southernstate, which has done so very much for our citizens over the years and has of late struggled to compete with larger, out-of-state companies.” Unfortunately, this is one situation in which even the relatively weak rational basis test will lead a court to strike down the law, as promoting a home-state business by discriminating against out-of-state competitors is not a legitimate state goal, and the law’s rational relation to that goal is therefore irrelevant. See Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985) .
For a number of years, all Equal Protection cases were subject either to rational basis review or to strict scrutiny. Beginning with the Burger Court, however, the notion of "intermediate scrutiny" began to develop. In Clark v. Jeter, 486 U.S. 456, 461 (1988) , the Court ruled that to “withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective.” So the relation to the objective must be more than merely non-arbitrary or rational – it must be substantial – and the objective itself must be more than merely valid or permissible – it must be important.
EXAMPLE: Westernstate has a law which requires that a paternity suit be brought, if at all, within 5 years of the birth of the child. The statute of limitations is intended to prevent Westernstate from wasting resources on fraudulent or stale claims. Such a law would not pass the application of intermediate scrutiny, as the five-year period is not substantially related to the state purpose.
Rational basis review is applied to all non-suspect classes, and, as mentioned above and discussed in more detail below, strict scrutiny is applied to suspect classes and laws burdening fundamental rights. What, then, remains to be subjected to intermediate scrutiny? Intermediate scrutiny applies to what are sometimes referred to as "quasi-suspect" classifications, which have been applied to discriminatory classifications based on sex or illegitimacy. Unlike with rational basis review, the state objectives for the discriminatory laws subjected to intermediate scrutiny
The highly respected Second Circuit recently summarized this level of scrutiny well:
Ramos v. Town of Vernon, 331 F. 3d 315, 321 (2d. Cir. 2003) . Laws relating to gender or alienage, along with other “important, but not constitutional rights,” will be subjected to this middle level scrutiny.
EXAMPLE: Southernstate Military University has a long-standing tradition of excellence in educating young minds and turning them into leaders as civilians and soldiers. It also has a long-standing tradition of doing so only if those young minds happen to come in male bodies – women are not admitted to this public institution. Despite their one hundred and fifty year tradition, unless the school can provide some “exceedingly persuasive justification” for the gender-based discriminatory policy, it will not pass the intermediate scrutiny Equal Protection review to be applied in such cases. See United States v. Virginia, 518 U.S. 515 (1996) (“the VMI case”).
While intermediate scrutiny is to be applied to quasi-suspect classes, it is important to note that in the VMI case the Court used the words “exceedingly persuasive justification” to describe the burden on VMI, which seems to be something stronger than the traditional language of "substantial relationship to an important state interest" most often applied. In general, however, it seems safe to assume that, for other quasi-suspect classifications (other than gender), the more traditional formulation of intermediate scrutiny still applies.
The constitutional guarantee that no person or class of persons shall be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and pursuit of happiness. The Declaration of Independence states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The concept of equal protection and equality in the United States is as old as the country itself. In 1776, Thomas Jefferson and the American colonists boldly announced the "self-evident" truth of human equality. Yet the meaning of equality was neither obvious nor clearly defined. The "peculiar institution" of Slavery was intricately woven into U.S. economic, social, and political fabric. Many Americans owned slaves, and most, including Jefferson himself, believed in the inferiority of the black race. James Madison and the other Founding Fathers drafted a national constitution that protected the slave trade and recognized the rights of slave owners. Article I, Section 2, of the Constitution counted a slave as only three-fifths of a person for the purposes of representation in Congress.
Slave codes permitted slave masters to buy, sell, and lease blacks like Personal Property. Slaves owed their masters an unqualified duty of obedience. Slave owners, on the other hand, were free to do as they pleased, short of murdering their slaves. Only community mores, common sense, and individual conscience restrained slave owners. Very few laws protected slaves from abusive or maniacal masters, and those that did were seldom enforced. In 1857, the U.S. Supreme Court placed its stamp of approval on the institution of slavery, holding that slaves were not "citizens" within the meaning of the Constitution, but only "property" lacking any constitutional protection whatsoever ( dred scott v. sandford, 60 U.S., 15 L. Ed. 691 [19 How.] 393).
From the inception of the United States, then, a gulf has separated the Jeffersonian ideal of human equality from the reality of racial inequality under the law. The tension separating the aspirations of the Declaration of Independence from the barbarism of slavery ultimately erupted in the U.S. Civil War. The victory won by the North in the War between the States ended the institution of slavery in the United States and commenced the struggle for Civil Rights that was to continue into the twenty-first century. This struggle began with the ratification of the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) Amendments during the Reconstruction period following the Civil War.
The Thirteenth Amendment abolished slavery and Involuntary Servitude, except when imposed as punishment for a crime. The Fifteenth Amendment did not expressly grant black citizens the right to vote, but it prohibited state and federal governments from denying this right based on "race, color, or previous condition of servitude." Each amendment gave Congress the power to enforce its provisions with "appropriate legislation."
Although both of these amendments were important, the Fourteenth Amendment has had the greatest influence on the development of civil rights in the United States. Section 1 of the Fourteenth Amendment provides that
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 nor deny to any person within its jurisdiction the equal protection of the laws.
The first clause emasculated the Dred Scott decision by bestowing national citizenship upon all blacks born or naturalized in the United States, making them eligible for federal protection of their civil rights. The privileges and immunities clause , once believed a potential source for civil rights, was narrowly interpreted by the Supreme Court in 1873 and has since remained dormant (Slaughter-House Cases, 83 U.S., 21 L. Ed. 394 [16 Wall.] 36).
The equal protection clause was also narrowly interpreted by the Supreme Court in the nineteenth century, but it still became the centerpiece of the Civil Rights Movement after World War II (1939). It spawned desegregation, Integration, and Affirmative Action and it promoted equal treatment and concern for the races under state law. It also provided the country with a starting point for a meaningful dialogue regarding the problems of inequality and discrimination. This dialogue has manifested itself in U.S. constitutional, statutory, and Common Law.
Inequalities during Reconstruction The ratification of the Fourteenth Amendment occurred during a period in U.S. history known as the Reconstruction. In this era, the South was placed under military occupation by the North, and African Americans realized some short-term benefits. Ku Klux Klan violence was temporarily curbed. Black Codes, passed by southern states after the Civil War to replace slavery with a segregated system based on social caste, were dismantled. Blacks were elected to state and federal office. Some achieved prominent status in legal circles, including one African American who obtained a seat on the South Carolina Supreme Court.
But Reconstruction was not a substitute for civil rights, and the improvements realized by African Americans proved evanescent. By 1880 the North's passion for equality had atrophied, as had its interest in the fate of African Americans. In the vacuum left by federal withdrawal, southern racism flourished and Klan Terrorism burgeoned. Labor codes were passed relegating blacks to virtual serfdom. These codes made it illegal for anyone to lure blacks away from their job for any reason, including better working conditions and wages. Some codes provided criminal penalties for African Americans who quit their job, even when no debt was owed to their employer.
Advancements made during Reconstruction were further eroded when the Supreme Court invalidated the civil rights act of 1875 (Civil Rights cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 ). This act proclaimed "the equality of all men before the law" and promised to "mete out equal and exact justice" to persons of every "race, color, or persuasion" in public or private accommodations alike. In striking down the law, the Supreme Court said that when
a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be a special favorite of the law.
The Court was not persuaded that this act was the type of "appropriate legislation" contemplated by the Fourteenth Amendment.
The Rise and Fall of Separate but Equal The Supreme Court's laissez-faire attitude toward racial inequality was also reflected in the area of Segregation. As Reconstruction collapsed, southern states gradually passed statutes formally segregating the races in every facet of society. Public schools, restaurants, restrooms, railroads, real property, prisons, and voting facilities were all segregated by race. The Supreme Court placed its imprimatur on these forms of racial apartheid in the landmark decision plessy v. ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).
Homer Plessy, who was seven-eighths Caucasian and one-eighth African, was prohibited from traveling on a railway coach for whites, under a Louisiana statute requiring "equal but separate accommodations" for black and white passengers. The Supreme Court, in an 8 to 1 decision, said this statute did not violate the Equal Protection Clause of the Fourteenth Amendment: "The object of the Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but …it could not have been intended to abolish distinctions based upon color, or to enforce 𠉪 commingling of the two races upon terms unsatisfactory to either." The Fourteenth Amendment, the Court concluded, was "powerless to eradicate racial instincts or to abolish distinctions based on physical differences."
Following Plessy, the "separate-but-equal" doctrine remained the lodestar of Fourteenth Amendment Jurisprudence for over half a century. Legally prescribed segregation was upheld by the Court in a litany of public places, including public schools. As Adolf Hitler rose to power in Germany during the 1930s, however, many U.S. citizens began to reconsider their notions of equality. Nazi policies of Aryan superiority, racial purity, ethnic cleansing, and extermination made many U.S. citizens view segregation in a more negative light. The juxtaposition of the Allied powers fighting totalitarianism in World War II and the citizenry practicing racial discrimination in the United States seemed hypocritical to many, especially when segregated African American troops were sacrificing their lives on the battlefield.
A series of Supreme Court decisions began to limit the scope of the separate-but-equal doctrine. The first hint of the Court's changing perspective came in the footnote to an otherwise forgettable case, United States v. Carolene Products, 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938). In Carolene Products, the Court upheld a federal statute regulating commerce, applying a presumption of constitutionality to legislation in this area. However, in Footnote 4, the Court cautioned that this presumption may not apply to legislation "directed at national … or racial minorities … [where] prejudice against discrete and insular minorities may be a special condition, which tends to seriously curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial scrutiny."
The Court employed a "more searching judicial scrutiny" in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 (1938). This case involved a black applicant who was denied admission to the University of Missouri Law School solely because of his color. The state of Missouri, which had no law school for blacks, attempted to fulfill its separate-but-equal obligations by offering to pay for the black applicant's tuition at a comparable out-of-state law school. The Supreme Court held that this arrangement violated the applicant's Fourteenth Amendment rights. The Court ruled that Missouri was required to provide African American law students with equal educational opportunities within its own borders, and could not shirk this responsibility by relying on educational opportunities offered in neighboring states.
When states did offer black students a separate Legal Education, the Supreme Court closely examined the quality of the educational opportunities afforded to each race in the segregated schools. In Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114 (1950), the Court ruled that the segregated facilities offered to black and white law students in Texas were not substantially equal. The Court determined that the faculty, library, and courses offered at the African American law school were patently inferior and denied the black students equal protection of the laws.
On the same day Sweatt was decided, the Court invalidated Oklahoma's attempt to segregate graduate students of different races within a single educational facility (McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149 ). Black law students at the University of Oklahoma were required to attend class in an anteroom designated for "coloreds only," study on the mezzanine of the library, and eat in the cafeteria at a different time than white students. The Court struck down these arrangements, determining that segregation impaired the students' "ability to study, engage in discussions, exchange views … and in general, learn [the] profession." According to the Court, the Fourteenth Amendment required the integration of black and white graduate students.
Brown v. Board of Education Plessy, Carolene Products, and so forth, foreshadowed the watershed equal protection decision handed down by the U.S. Supreme Court in 1954, brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873. Brown reviewed four consolidated cases in which local governments segregated public schools by race. In each case, black students were denied admission on an integrated basis. The question before the Court was not whether the segregated educational facilities were of a similar quality. Instead, the question was whether, under any circumstances, segregated educational opportunities could ever be equal, or substantially equal, in nature. In a resounding, unanimous opinion, the Court said that separate-but-equal education is "inherently unequal" and "has no place" in the field of public education.
Citing Sweatt and McLaurin, the Court reiterated that students' ability to learn is stunted without exposure to the viewpoints of different races. The Court also underscored the sociological and psychological harm segregation inflicts on minority children, finding that segregation "is usually interpreted as denoting the inferiority of the Negro group." The Court added, "Segregation with the sanction of law … has a tendency to [retard] the educational and mental development of Negro children and deprive them of some of the benefits they would receive in a racial[ly] integrated school system."
When the Brown decision was announced, observers realized that the rationale applied by the Court had far-reaching consequences. If segregation in public schools denoted the inferiority of African Americans, so did segregation elsewhere in society. If integration enhanced educational opportunities for U.S. citizens of every race, then perhaps integration could spur economic growth and social development. Observers also realized that if segregation in public schools violated the Equal Protection Clause, then all forms of government-imposed segregation were vulnerable to constitutional attack.
Modern Equal Protection Jurisprudence Over the next forty years, the Supreme Court demonstrated that the principles enunciated in Brown were not limited to racial segregation and discrimination. In addition to striking down most legislative classifications based on race, the Court closely examined classifications based on length of state residency, U.S. citizenship, and gender. The Court looked carefully at legislation denying benefits to children born out of wedlock. Government classifications denying any group a fundamental right were also reviewed with judicial skepticism.
The Supreme Court has recognized that nearly all legislation classifies on the basis of some criteria, bestowing benefits or imposing burdens on one group and denying them to another. For example, the government offers veterans, indigent people, and elderly people free or low-cost medical services that are not available to the rest of society. Progressive tax rates impose higher rates of taxation on the wealthy. Few such classifications are perfectly drawn by the legislature.
Most classifications are either overinclusive or underinclusive. An overinclusive classification contains all persons who are similarly situated and also persons who should not be included. Legislation that is intended to protect poor and fragile elderly people but actually extends to all Senior Citizens is overinclusive. An underinclusive classification excludes some similarly situated persons from the intended legislative benefit or detriment. Legislation that is designed to eliminate Fraud in government but actually excludes Executive Branch employees from its regulatory grasp is underinclusive. Some classifications can be both underinclusive and overinclusive.
Although most plaintiffs contend they are members of a historically vulnerable group to which the Supreme Court has given special protection, this is not always the case. In Village of Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000), the Supreme Court ruled that anyone who claims to have been singled out for adverse, irrational government action may bring a lawsuit based on the violation of the Equal Protection Clause. In effect, a person can become a "class of one."
The Supreme Court has developed a three-tiered approach to examine all such legislative classifications. Under the first tier of scrutiny, known as Strict Scrutiny, the Court will strike down any legislative classification that is not necessary to fulfill a compelling or overriding government objective. Strict scrutiny is applied to legislation involving suspect classifications and fundamental rights. A Suspect Classification is directed at the type of "discrete and insular minorities" referred to in the Carolene Products footnote. A fundamental right is a right that is expressly or implicitly enumerated in the U.S. Constitution, such as Freedom of Speech or assembly. Most legislation reviewed by the Supreme Court under the strict scrutiny standard has been invalidated, because very few classifications are necessary to support a compelling government objective.
The second tier of scrutiny used by the Court to review legislative classifications is known as heightened, or intermediate, scrutiny. Legislation will not survive heightened scrutiny unless the government can demonstrate that the classification is substantially related to an important societal interest. Gender classifications are examined under this middle level of review, as are classifications that burden extramarital children.
The third tier of scrutiny involves the least amount of judicial scrutiny and is known as the rational relationship test. The Supreme Court will approve legislation under this standard so long as the classification is reasonably related to a legitimate government interest. The rational relationship test permits the legislature to employ any classification that is conceivably or arguably related to a government interest that does not infringe upon a specific constitutional right. An overwhelming majority of social and economic laws are reviewed and upheld by courts using this minimal level of scrutiny.
Classifications Based on Race Applying strict scrutiny, the Supreme Court has consistently struck down legislative classifications based on race. Relying on the Brown decision, the Court struck down a series of state laws segregating parks, playgrounds, golf courses, bathhouses, beaches, and public transportation. Because the Fourteenth Amendment protects against only government discrimination, discrimination by private individuals or businesses is not proscribed under the Equal Protection Clause unless the government is significantly involved in the private activity. Although the Equal Protection Clause does not offer protection against discriminatory laws promulgated by the president, Congress, or federal administrative agencies, the Supreme Court has interpreted the due process clause of the Fifth Amendment to provide such protection (Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 ).
The equal protection guarantee extends not only to laws that obviously discriminate on their face as did the laws that intentionally segregated races in public schools, but also to government action having a discriminatory purpose, effect, or application. Governmental activity with a discriminatory purpose, also known as purposeful discrimination, may occur when a prosecutor exercises a Peremptory Challenge (the right to exclude a juror without assigning a reason or legal cause) to exclude a member of a minority race from a jury (Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 ). If the prosecutor is unable to articulate a reason for striking the juror that is unrelated to race, the peremptory challenge will be nullified by the court.
The discriminatory impact of a race-neutral classification may also doom legislation under the Fourteenth Amendment. For example, following the demise of Reconstruction, many former Confederate states enacted legislation requiring residents to pass literacy tests before they could register to vote, but exempted persons who had been qualified to vote at an earlier time when blacks were disenfranchised slaves (i.e., Caucasians). This "grandfather clause" exemption was struck down by the Supreme Court because of its discriminatory impact on African Americans. The Court also struck down other voting restrictions, including "white primaries," which excluded African Americans from participating in a state's electoral process for selecting delegates to a political party convention.
A law can be neutral on its face or in purpose, but still be applied in a discriminatory manner. In yick wo v. hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), the Supreme Court struck down a San Francisco ordinance banning the operation of hand laundries in wooden buildings, because local officials were closing down only laundries owned by persons of Asian descent. White owners of such institutions were permitted to keep their businesses open.
Proof of discriminatory purpose, effect, or application can be difficult. Courts will search the Legislative History of a particular classification for discriminatory origins. Courts also consider specific discriminatory actions taken by state officials in the past. Statistical evidence is relevant as well, but insufficient to establish discrimination by itself (McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 ).
McCleskey involved a black man who was convicted and sentenced to death for killing a white police officer. On appeal, attorneys for the defendant relied on a sophisticated statistical analysis indicating that blacks were significantly more likely to receive the death penalty for killing a white person than were whites convicted of killing a black person. In a 5 to 4 decision, the Supreme Court said this evidence was not enough to demonstrate that the defendant had been denied equal protection. The majority held that the defendant could have prevailed under the Fourteenth Amendment only if he had shown a discriminatory purpose on the part of the Georgia legislature when it enacted the death penalty legislation, or on the part of the jurors in his trial when they imposed the death sentence.
Racial Classifications Surviving Judicial Scrutiny Classifications based on race usually sound the death knell for the legislation containing them, with two notable exceptions. The first involves the internment of Americans with Japanese ancestry during World War II, and the second comes in the area of affirmative action.
Japanese American Internment Pursuant to concurrent presidential, congressional, and military action, over one hundred thousand Japanese Americans were confined to "relocation camps" throughout the United States during World War II. Despite Justice Hugo L. Black's assertion that all race-based legal classifications are "immediately suspect" and subject to the "most rigid scrutiny," the Supreme Court ruled in United States v. Korematsu, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), that the internment did not violate the Equal Protection Clause. Deferring to the combined war powers of the president and Congress, the Court said relocation of these U.S. citizens was a "military urgency" in the war against Japan, justified by concern over domestic Espionage, sabotage, and subversion. Justices owen j. roberts , frank murphy , and robert h. jackson dissented, arguing that no evidence of disloyalty had been produced against any of the interned Japanese Americans. Korematsu stands as the only case in which the Supreme Court has upheld a racial classification under the strict scrutiny standard.
Affirmative Action Affirmative action, sometimes called benign discrimination because it is considered less harmful than other forms of discrimination, is represented by government programs created to remedy past discrimination against blacks, women, and members of other protected groups. These programs include special considerations given to minorities competing against the rest of society for jobs, promotions, and admission to Colleges and Universities. Opponents of affirmative action characterize it as reverse discrimination because it often excludes individuals with ostensibly superior credentials, solely on account of their race or gender.
The Supreme Court has vacillated on what level of scrutiny applies to affirmative action programs. In regents of university of california v. bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), in which there was no majority opinion, four justices applied heightened scrutiny in holding that a university may consider racial criteria as part of a competitive admission process, so long as it does not use fixed quotas. But in Richmond v. J. A. Croson Co., 488 U.S. 469 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), five justices applied strict scrutiny to invalidate an affirmative action program intended to increase the number of minority-owned businesses awarded city construction contracts.
As of 2003, it appears that a majority of justices favor application of strict scrutiny to cases involving benign discrimination (not obvious or intentional). When the more stringent level of scrutiny has been applied in these cases, the Court has held that a general legislative desire to correct past injustices was not sufficiently compelling to warrant a racial preference for minorities. Instead, the Court has ruled, benign racial preferences will be tolerated under the Fourteenth Amendment only when the government can demonstrate that they are narrowly tailored to correct specific discriminatory practices by the government itself or by some private sector entity within its jurisdiction.
Lower federal courts and state courts have struggled with the proper analysis of affirmative action programs in light of the line of Supreme Court decisions. Some of the more high profile cases have focused upon affirmative actions in state universities. In Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), the Fifth Circuit Court of Appeals found that a program at the University of Texas School of Law that provided "substantial" racial preferences to African and Mexican Americans in its admissions policies violated the Fourteenth Amendment. The school based its admission of prospective students on the students' undergraduate grade point averages and scores on the Law School Admission Test (LSAT). Requirements for entry for minority candidates were lower than those for other "non-preferred" candidates, including Caucasians.
The Fifth Circuit held that the university's program failed to serve a compelling state interest and, even if it had, it was not narrowly tailored to serve any compelling State Interest. The case garnered national attention and was heavily criticized by minority groups. The Supreme Court denied certiorari in the case, allowing the ruling to stand. Thus, schools in Texas, Mississippi, and Louisiana are forbidden from using race as a consideration in admissions policies. Litigation in the case continued for several years following the decision.
Other circuits have reached opposite results, often explicitly rejecting the Hopwood analysis. The Ninth Circuit, in Smith v. University of Washington, Law School, 233 F.3d 1188 (9th Cir. 2000), found that a properly designed and operated race-conscious admissions program would not violate the Fourteenth Amendment. The law school at the University of Washington employed an affirmative action program when it considered the admission of law students. Although the Ninth Circuit eventually held that the case was moot because the law school had voluntarily stopped using race as a criteria, the court noted that Bakke continued to have vitality, thus allowing race to be used as a criterion so long as schools did not establish quotas.
Classifications Based on Gender The Supreme Court has established that gender classifications are subject to intermediate scrutiny. The seminal case in this area is Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), which involved an Oklahoma law permitting females between the ages of eighteen and twenty to purchase 3.2 percent beer, but restricting males from purchasing such beer until they reached age twenty-one. The state defended the statute by introducing traffic statistics that suggested that men were more likely than women to be arrested for drunk driving before age twenty-one. The Court agreed that enhanced traffic safety was an "important" government interest but disagreed that the gender line drawn by the state would "substantially" serve this interest.
Although many cases regarding classifications based on gender have involved discriminatory actions against women, some men have successfully brought cases alleging Sex Discrimination in violation of the Equal Protection Clause. For example, in Hill v. Ross, 183 F.3d 586 (7th Cir. 1999), the Seventh Circuit determined that a school's decision not to hire a male university professor solely on the grounds of his gender could be a violation of the Equal Protection Clause and federal statutory law. In Hill, a university department refused to hire either of two male candidates because it wished to maintain a certain proportion of women on its faculty. The court reversed a Summary Judgment granted by the district court because an issue of material fact existed as to whether prior instances of discrimination based on sex necessitated the university's policy.
Alienage, State Residency, and Legitimacy Classifications The Supreme Court has held that legislation discriminating against Aliens who are properly within the United States is considered suspect and will be upheld only if the classification is necessary to serve a compelling government interest. In at least one alienage case, however, the Court has applied only heightened scrutiny to invalidate a state law preventing undocumented children from enrolling in the Texas public school system (Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 ). The Court continues to call classifications based on alienage suspect but may not always apply the most rigorous scrutiny to such legislation.
State laws that condition government benefits on length of state residency have also been deemed suspect by the Supreme Court. In Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), the Court ruled that legislation denying government benefits to persons residing in a state for less than a year violated the Equal Protection Clause. Although states may restrict Welfare, educational, and other government benefits to bona fide residents, the Court wrote, they may not restrict the dispensation of government benefits in a way that would unduly burden the right to interstate travel or deprive interstate travelers of the right to be treated as equal to other state residents. Since Shapiro, the Supreme Court has occasionally applied more moderate scrutiny to legislation burdening interstate travelers, prompting critics to assail the Court for its inconsistent application of the three-tiered analysis.
State laws that discriminate against children born out of wedlock are subject to heightened scrutiny. State legislation has been struck down for denying illegitimate children inheritance rights, welfare benefits, and Child Support when such rights were offered to legitimate children. Although Illegitimacy is not a suspect classification subject to strict scrutiny, courts do provide meaningful review of such statutes. The Supreme Court is sensitive to penalizing children for their extramarital status when the children themselves are not responsible for that status.
Classifications Involving Sexual Preference In romer v. evans, 517 U.S. 620, 116 S. Ct. 1620, L. Ed. 2d (1996), the U.S. Supreme Court reviewed a Colorado state constitutional amendment that prohibited any branch of the state or local governments from taking action designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation." The immediate effect of the amendment, known popularly as "Amendment 2," was to repeal all existing statutes, regulations, ordinances, and governmental policies that barred discrimination based on sexual preference. Under Amendment 2, state officials and private entities would have been permitted to discriminate against gays and lesbians in a number of areas, including insurance, employment, housing, and welfare services.
The state of Colorado defended Amendment 2 by arguing that it did nothing more than place homosexuals on a level playing field with all other state residents. The amendment, Colorado submitted, simply denied gays and lesbians any "special rights." The Supreme Court disagreed, holding that Amendment 2 violated the Equal Protection Clause because it "identifies persons by a single trait and then denies them protection across the board," which is something "unprecedented in our Jurisprudence."
Writing for a six-person majority, Justice anthony kennedy explained that "Equal Protection of the laws is not achieved through indiscriminate imposition of inequalities." The associate justice said that "[r]espect for this principle" demonstrates "why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare." Amendment 2 is unconstitutional, Kennedy concluded, because any law that generally makes it "more difficult for one group of citizens than all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense."
Classifications Involving Fundamental Rights A fundamental right is a right expressly or implicitly enumerated by the U.S. Constitution. In Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), Justice benjamin n. cardozo wrote that these freedoms represent "the very essence of a scheme of ordered liberty … principles so rooted in the traditions and conscience of our people as to be ranked as fundamental." During the nation's first century, freedom of contract and various property rights were deemed fundamental. In the twentieth century, more personal liberties have been recognized as such. These freedoms include most of those explicitly contained in the Bill of Rights, such as freedom of speech, freedom of religion, freedom of assembly, Right to Counsel, right against unreasonable Search and Seizure, right against Self-Incrimination, right against Double Jeopardy, right to a jury trial, and right to be free from Cruel and Unusual Punishment. They also include freedoms specifically mentioned elsewhere in the Constitution, such as the right to vote. In the late twentieth century, the Supreme Court began to find that fundamental rights embodied freedoms that were not expressly enumerated by the Constitution but that may be fairly inferred by one of its provisions, such as the rights to personal autonomy and privacy.Relying on the doctrine of incorporation, the Supreme Court has made these fundamental constitutional principles applicable to the states through the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Court has concluded, in a series of decisions, that these freedoms are so important to the preservation of liberty that they must be equally conferred upon the citizens of every state. No state may provide its residents with less protection of these fundamental rights than is offered under the federal Constitution. The Fourteenth Amendment thus guarantees state citizens equal protection under the laws, by creating a minimum federal threshold of essential freedoms each state must recognize.
In Gideon v. Wainright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), Clarence Earl Gideon was charged with entering a poolroom with the intent to commit a misdemeanor. Before trial, Gideon, an indigent, asked the judge to appoint an attorney to represent him because he could not afford one. The court denied Gideon's request, and a jury later convicted him. Gideon's request for a court-appointed counsel in a misdemeanor case would have been denied in many states at that time. The Supreme Court held that all states must thereafter provide court-appointed counsel at every critical stage of a criminal proceeding, whether the proceeding concerned a misdemeanor, felony, or capital offense. The right to counsel is too fundamental for any state to ignore.
The year after Gideon was decided, the Supreme Court handed down another ground-breaking decision in the area of fundamental rights. reynolds v. sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), involved the dilution of voting rights through legislative Apportionment in Alabama. Legislative apportionment refers to the manner in which a state, county, or municipality is divided for purposes of determining legislative representation. Some states are divided into voting precincts, whereas others are divided into wards or districts.
In Reynolds, the voting subdivisions were so unevenly apportioned that a distinct minority of Alabama voters were electing a majority of the state legislators. As a result, voters in less populated electoral subdivisions had more voting power than did voters in more populated electoral subdivisions. The Supreme Court struck down this arrangement under the Fourteenth Amendment, holding that every voter has a fundamental right to cast a ballot of equal weight. The Court had earlier applied this one-person, one-vote principle to federal congressional districts, requiring that all such districts be as nearly equal in population as practicable (Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 ).
In addition to the Fourteenth Amendment of the U.S. Constitution, most state constitutions provide equal protection guarantees and enumerate certain fundamental rights. In many of the states with these constitutions, courts also employ a three-tiered analysis similar to that developed by the U.S. Supreme Court. State courts can interpret their own constitution to provide more, but not less, protection than that offered under the federal Equal Protection Clause.
The Fourteenth Amendment authorizes Congress to enact "appropriate legislation" to enforce the Equal Protection Clause. The Commerce Clause provides Congress with the authority to enact legislation that affects interstate commerce, an even broader power. Pursuant to these clauses, Congress has enacted major pieces of legislation that have extended protection against discrimination beyond that contained in the Constitution.
The Civil Rights Act of 1871 (42 U.S.C.A. § 1983 et seq.) was an early piece of such legislation. Section 1983 of the act, passed when Ku Klux Klan violence was widespread, created a federal remedy, namely money damages, for individuals whose constitutional rights had been violated by state officials. Although this statute has been influential and frequently litigated, no relief will be granted under it unless "state action" can be demonstrated.
The term, "state action," refers to a discriminatory act committed by a government official or agent. Such action may be taken by a legislative, executive, judicial, or administrative body, or some other person or entity acting under "color of law." Section 1983 does not apply to wholly private or nongovernmental conduct. If action is taken by a private individual cloaked with some measure of state authority, courts will find State Action if one of four tests is satisfied: (1) public function test—state action is found where the government has delegated its traditional responsibilities, such as police protection, to a private party or agency (2) nexus test—state action is found where there is a sufficiently close connection between the government and a private actor, such as where the state owns or leases property on which private discrimination occurs (3) state compulsion test—state action is found where the government coerces or significantly encourages private conduct, such as where federal regulations require private railways to conduct urinalysis after accidents (4) joint action test—state action is found where the government is a willful participant in discrimination by a private actor.
Other congressional legislation prohibits discrimination in the private sector. Title VII of the 1964 Civil Rights Act prohibits employers from hiring or firing employees on the basis of race, color, sex, or national origin (42 U.S.C.A. § 2000e-2 et seq.). Federal courts have interpreted Title VII to prohibit hostile work environments involving Sexual Harassment, even when the perpetrator and victim are the same gender. The Age Discrimination in Employment Act (29 U.S.C.A. § 623 et seq.) extends Title VII protections to employment decisions based on age and is applicable to persons between the ages of forty and seventy. Under both statutes, employers may defend their actions by demonstrating nondiscriminatory reasons for a particular decision, such as the dishonesty or Incompetency of a discharged employee.
The Americans with Disabilities Act (ADA) (42 U.S.C.A. § 1211 et seq.) prohibits discrimination against "qualified individuals" based on a "physical or mental impairment that substantially limits one or more" of an individual's "major life activities." Title I of the ADA applies to employers and requires them to make "reasonable accommodations" for disabled employees who are otherwise qualified to perform a job, unless such accommodations would cause undue hardship to the business. Such accommodations can include making existing facilities more accessible, permitting part-time or modified work schedules, and reassigning jobs.
Title II applies to public entities, including any department, agency, or other instrumentality of a state or local government. The ADA does not apply to the federal government, but other legislation does protect disabled federal employees. Title III of the ADA governs public accommodations such as restaurants, theaters, museums, stores, daycare centers, and hospitals. The word disability includes terminal illnesses and prevents health care facilities from failing to treat patients diagnosed with AIDS or HIV.
Many state statutes also promote equal protection by prohibiting discrimination. Legislation from several states combines many of the federal protections under a single category of Human Rights law. Depending on the particular jurisdiction and issue at stake, state human rights legislation, and the court decisions interpreting it, may provide broader protection than that offered under similar federal laws.
The Common Law
The notion of equal protection or equal treatment is rooted in the Anglo-Saxon common law. When henry ii ascended the throne in 1154, England was divided into political subdivisions consisting of villages, hundreds, shires, and towns. The king, feudal lords, and local assemblies all wielded power to some extent. But there were no effective national executive, legislative, or judicial institutions that could administer laws in a uniform and organized manner. Henry II changed this condition by creating a royal common law, which his officials disseminated throughout the kingdom. Thus, the king's law was made "common" to citizens of the entire realm.
The idea of equality under the law is also rooted in the Rule of Law and in the principle that no one is above the law, including the king and the members of Parliament. This principle found expression in Bonham's case, 8 Co. 107a, 77 Eng. Rep. 638 (K.B. 1608), in which eminent English jurist Sir Edward Coke wrote that "the common law will … controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void."
In 1761, James Otis, an American colonist, relied on Coke in the writs of assistance case, in which he stated that any act of Parliament "against the constitution is void" and that it was the duty of the courts to "pass such acts into disuse" because they contravened "the reason of the common law." In a recent application of this principle, President richard m. nixon lost his battle with the rule of law when the Supreme Court forced him to surrender the infamous Watergate tapes against his assertion of Executive Privilege ( united states v. nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 ).
Courts have also relied on the concept of equal treatment in explaining the common doctrine of Stare Decisis. When a court has laid down a principle of law in one case, stare decisis requires the court to apply that principle to future cases involving a similar set of facts. Some commentators have suggested that stare decisis serves two policy considerations: continuity and predictability in the law. But this doctrine also promotes equal treatment, federal courts have reasoned, by permitting all similarly situated litigants to obtain the same results under the law.
The American Revolution was sparked by the idea of equality. In 1776, the colonists declared themselves independent of the British Empire, in which the government often acted as if it were above the law. Jefferson and the other revolutionaries announced their steadfast adherence to the rule of law and the idea of human equality. But the idea of equality has always been ambiguous and controversial. U.S. citizens still disagree about whether the Equal Protection Clause of the Fourteenth Amendment guarantees equality of condition, equality of result, or equality of treatment and concern under the law. This disagreement manifests itself in state and federal courthouses and the halls of Congress.
Bailyn, Bernard. 1967. The Ideological Origins of the American Revolution. Cambridge, Mass.: Belknap Press.
Barron, Jerome A., and C. Thomas Dienes. 1999. Constitutional Law in a Nutshell. 4th ed. St. Paul, Minn.: West.
Berman, Harold J. 1983. Law and Revolution. Cambridge, Mass.: Harvard Univ. Press.
Friedman, Lawrence M. 1985. A History of American Law. 2d ed. New York: Simon & Schuster.
Renstrom, Peter G. 1999. Constitutional Rights Sourcebook. Santa Barbara, Calif.: ABC-CLIO.
Rotunda, Ronald D., et al. 1986. Treatise on Constitutional Law: Substance and Procedure. Volume 3. St. Paul, Minn.: West.
Wills, Garry. 1978. Inventing America: Jefferson's Declaration of Independence. New York: Doubleday.
Equal Protection: Judging Classifications by Law
A guarantee of equal protection of the laws was contained in every draft leading up to the final version of section 1 of the Fourteenth Amendment.1441 The desire to provide a firm constitutional basis for already-enacted civil rights legislation1442 and to place repeal beyond the accomplishment of a simple majority in a future Congress was important to its sponsors.1443 No doubt there were conflicting interpretations of the phrase “equal protection” among sponsors and supporters and the legislative history does little to clarify whether any sort of consensus was accomplished and if so what it was.1444 Although the Court early recognized that African-Americans were the primary intended beneficiaries of the protections thus adopted,1445 the spare language was majestically unconfined to so limited a class or to so limited a purpose. Though efforts to argue for an expansive interpretation met with little initial success,1446 the equal protection standard ultimately came to be applicable to all classifications by legislative and other official bodies. Now, the Equal Protection Clause looms large in the fields of civil rights and fundamental liberties as a constitutional text affording the federal and state courts extensive powers of review with regard to differential treatment of persons and classes.
The Traditional Standard: Restrained Review.
The tradi-tional standard of review of equal protection challenges of classifications developed largely though not entirely in the context of economic regulation.1447 It is still most often applied there, although it appears in many other contexts as well,1448 including so-called “class-of-one” challenges.1449 A more active review has been developed for classifications based on a “suspect” indicium or affecting a “fundamental” interest. “The Fourteenth Amendment enjoins ‘the equal protection of the laws,’ and laws are not abstract propositions.” Justice Frankfurter once wrote, “They do not relate to abstract units, A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.”1450 Thus, the mere fact of classification will not void legislation,1451 because in the exercise of its powers a legislature has considerable discretion in recognizing the differences between and among persons and situations.1452 “Class legislation, discriminating against some and favoring others, is prohibited but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.”1453 Or, more succinctly, “statutes create many classifications which do not deny equal protection it is only ‘invidious discrimination’ which offends the Constitution.”1454
How then is the line between permissible and invidious classification to be determined? In Lindsley v. Natural Carbonic Gas Co.,1455 the Court summarized one version of the rules still prevailing. “1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.” Especially because of the emphasis upon the necessity for total arbitrariness, utter irrationality, and the fact that the Court will strain to conceive of a set of facts that will justify the classification, the test is extremely lenient and, assuming the existence of a constitutionally permissible goal, no classification will ever be upset. But, contemporaneously with this test, the Court also pronounced another lenient standard which did leave to the courts a judgmental role. In F.S. Royster Guano Co. v. Virginia,1456 the court put forward the following test: “[T]he classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”1457 Use of the latter standard did in fact result in some in-validations.1458
But then, coincident with the demise of substantive due process in the area of economic regulation,1459 the Court reverted to the former standard, deferring to the legislative judgment on questions of economics and related matters even when an impermissible purpose could have been attributed to the classifiers it was usually possible to conceive of a reason that would justify the classification.1460 Strengthening the deference was the recognition of discretion in the legislature not to try to deal with an evil or a class of evils all within the scope of one enactment but to approach the problem piecemeal, to learn from experience, and to ameliorate the harmful results of two evils differently, resulting in permissible over-and under-inclusive classifications.1461
In recent years, the Court has been remarkably inconsistent in setting forth the standard which it is using, and the results have reflected this. It has upheld economic classifications that suggested impermissible intention to discriminate, reciting at length the Lindsley standard, complete with the conceiving-of-a-basis and the one-step-at-a-time rationale,1462 and it has applied this relaxed standard to social welfare regulations.1463 In other cases, it has used the Royster Guano standard and has looked to the actual goal articulated by the legislature in determining whether the classification had a reasonable relationship to that goal,1464 although it has usually ended up upholding the classification. Finally, purportedly applying the rational basis test, the Court has invalidated some classifications in the areas traditionally most subject to total deference.1465
Attempts to develop a consistent principle have so far been unsuccessful. In Railroad Retirement Board v. Fritz,1466 the Court acknowledged that “[t]he most arrogant legal scholar would not claim that all of these cases cited applied a uniform or consistent test under equal protection principles,” but then went on to note the differences between Lindsley and Royster Guano and chose the former. But, shortly, in Schweiker v. Wilson,1467 in an opinion written by a different Justice,1468 the Court sustained another classification, using the Royster Guano standard to evaluate whether the classification bore a substantial relationship to the goal actually chosen and articulated by Congress. In between these decisions, the Court approved a state classification after satisfying itself that the legislature had pursued a permissible goal, but setting aside the decision of the state court that the classification would not promote that goal the Court announced that it was irrelevant whether in fact the goal would be promoted, the question instead being whether the legislature “could rationally have decided” that it would.1469
In short, it is uncertain which formulation of the rational basis standard the Court will adhere to.1470 In the main, the issues in recent years have not involved the validity of classifications, but rather the care with which the Court has reviewed the facts and the legislation with its legislative history to uphold the challenged classifications. The recent decisions voiding classifications have not clearly set out which standard they have been using.1471 Clarity in this area, then, must await presentation to the Court of a classification that it would sustain under the Lindsley standard and invalidate under Royster Guano.
The New Standards: Active Review.
When government leg-islates or acts either on the basis of a “suspect” classification or with regard to a “fundamental” interest, the traditional standard of equal protection review is abandoned, and the Court exercises a “strict scrutiny.” Under this standard government must demonstrate a high degree of need, and usually little or no presumption favoring the classification is to be expected. After much initial controversy within the Court, it has now created a third category, finding several classifications to be worthy of a degree of “intermediate” scrutiny requiring a showing of important governmental purposes and a close fit between the classification and the purposes.
Paradigmatic of “suspect” categories is classification by race. First in the line of cases dealing with this issue is Korematsu v. United States,1472 concerning the wartime evacuation of Japanese-Americans from the West Coast, in which the Court said that because only a single ethnic-racial group was involved the measure was “immediately suspect” and subject to “rigid scrutiny.” The school segregation cases1473 purported to enunciate no per se rule, however, although subsequent summary treatment of a host of segregation measures may have implicitly done so, until in striking down state laws prohibiting interracial marriage or cohabitation the Court declared that racial classifications “bear a far heavier burden of justification” than other classifications and were invalid because no “overriding statutory purpose”1474 was shown and they were not necessary to some “legitimate overriding purpose.”1475 “A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.”1476 Remedial racial classifications, that is, the development of “affirmative action” or similar programs that classify on the basis of race for the purpose of ameliorating conditions resulting from past discrimination, are subject to more than traditional review scrutiny, but whether the highest or some intermediate standard is the applicable test is uncertain.1477 A measure that does not draw a distinction explicitly on race but that does draw a line between those who seek to use the law to do away with or modify racial discrimination and those who oppose such efforts does in fact create an explicit racial classification and is constitutionally suspect.1478
Toward the end of the Warren Court, there emerged a trend to treat classifications on the basis of nationality or alienage as suspect,1479 to accord sex classifications a somewhat heightened traditional review while hinting that a higher standard might be appropriate if such classifications passed lenient review,1480 and to pass on statutory and administrative treatments of illegitimates inconsistently.1481 Language in a number of opinions appeared to suggest that poverty was a suspect condition, so that treating the poor adversely might call for heightened equal protection review.1482
However, in a major evaluation of equal protection analysis early in this period, the Court reaffirmed a two-tier approach, determining that where the interests involved that did not occasion strict scrutiny, the Court would decide the case on minimum rationality standards. Justice Powell, writing for the Court in San Antonio School Dist. v. Rodriguez,1483 decisively rejected the contention that a de
facto wealth classification, with an adverse impact on the poor, was either a suspect classification or merited some scrutiny other than the traditional basis,1484 a holding that has several times been strongly reaffirmed by the Court.1485 But the Court’s rejection of some form of intermediate scrutiny did not long survive.
Without extended consideration of the issue of standards, the Court more recently adopted an intermediate level of scrutiny, perhaps one encompassing several degrees of intermediate scrutiny. Thus, gender classifications must, in order to withstand constitutional challenge, “serve important governmental objectives and must be substantially related to achievement of those objectives.”1486 And classifications that disadvantage illegitimates are subject to a similar though less exacting scrutiny of purpose and fit.1487 This period also saw a withdrawal of the Court from the principle that alienage is always a suspect classification, so that some discriminations against aliens based on the nature of the political order, rather than economics or social interests, need pass only the lenient review standard.1488
The Court has so far resisted further expansion of classifications that must be justified by a standard more stringent than rational basis. For example, the Court has held that age classifications are neither suspect nor entitled to intermediate scrutiny.1489 Although the Court resists the creation of new suspect or “quasi-suspect” classifications, it may still, on occasion, apply the Royster Guano rather than the Lindsley standard of rationality.1490
The other phase of active review of classifications holds that when certain fundamental liberties and interests are involved, government classifications which adversely affect them must be justified by a showing of a compelling interest necessitating the classification and by a showing that the distinctions are required to further the governmental purpose. The effect of applying the test, as in the other branch of active review, is to deny to legislative judgments the deference usually accorded them and to dispense with the general presumption of constitutionality usually given state classifications.1491
It is thought1492 that the “fundamental right” theory had its origins in Skinner v. Oklahoma ex rel. Williamson,1493 in which the Court subjected to “strict scrutiny” a state statute providing for compulsory sterilization of habitual criminals, such scrutiny being thought necessary because the law affected “one of the basic civil rights.” In the apportionment decisions, Chief Justice Warren observed that, “since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”1494 A stiffening of the traditional test could be noted in the opinion of the Court striking down certain restrictions on voting eligibility1495 and the phrase “compelling state interest” was used several times in Justice Brennan’s opinion in Shapiro v. Thompson.1496 Thereafter, the phrase was used in several voting cases in which restrictions were voided, and the doctrine was asserted in other cases.1497
Although no opinion of the Court attempted to delineate the process by which certain “fundamental” rights were differentiated from others,1498 it was evident from the cases that the right to vote,1499 the right of interstate travel,1500 the right to be free of wealth distinctions in the criminal process,1501 and the right of procreation1502 were at least some of those interests that triggered active review when de jure or de facto official distinctions were made with respect to them. In Rodriguez,1503 the Court also sought to rationalize and restrict this branch of active review, as that case involved both a claim that de facto wealth classifications should be suspect and a claim that education was a fundamental interest, so that providing less of it to people because they were poor triggered a compelling state interest standard. The Court readily agreed that education was an important value in our society. “But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. . . . [T]he answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.”1504 A right to education is not expressly protected by the Constitution, continued the Court, and it was unwilling to find an implied right because of its undoubted importance.
But just as Rodriguez did not ultimately prevent the Court’s adoption of a “three-tier” or “sliding-tier” standard of review, Justice Powell’s admonition that only interests expressly or impliedly protected by the Constitution should be considered “fundamental” did not prevent the expansion of the list of such interests. The difficulty was that Court decisions on the right to vote, the right to travel, the right to procreate, as well as other rights, premise the constitutional violation to be of the Equal Protection Clause, which does not itself guarantee the right but prevents the differential governmental treatment of those attempting to exercise the right.1505 Thus, state limitation on the entry into marriage was soon denominated an incursion on a fundamental right that required a compelling justification.1506 Although denials of public funding of abortions were held to implicate no fundamental interest—abortion’s being a fundamental interest—and no suspect classification—because only poor women needed public funding1507 —other denials of public assistance because of illegitimacy, alienage, or sex have been deemed to be governed by the same standard of review as affirmative harms imposed on those grounds.1508 And, in Plyler v. Doe,1509 the complete denial of education to the children of illegal aliens was found subject to intermediate scrutiny and invalidated.
An open question after Obergefell v. Hodges, the 2015 case finding the right to same-sex marriage is protected by the Constitution, is the extent to which the Court is reconceptualizing equal protection analysis.1510 In Obergefell, the Court concluded that state laws that distinguished between marriages between same- and opposite-sex married couples violated the Equal Protection Clause.1511 However, in lieu of more traditional equal protection analysis, the Obergefell Court did not identify whether the base classification made by the challenged state marriage laws was “suspect.” Nor did the Obergefell Court engage in a balancing test to determine whether the purpose of the state classification was tailored to or fit the contours of the classification. Instead, the Court merely declared that state laws prohibiting same-sex marriage “abridge[d] central precepts of equality.”1512 It remains to be seen whether Obergefell signals a new direction for the Court’s equal protection jurisprudence or is merely an anomaly that indicates the fluctuating nature of active review, as the doctrine has been subject to shifting majorities and varying degrees of concern about judicial activism and judicial restraint. Nonetheless, as will be more fully reviewed below, the sliding scale of review underlies many of the Court’s most recent equal protection cases, even if the jurisprudence and its doctrinal basis have not been fully elucidated or consistently endorsed by the Court.
A handful of state supreme courts ruled in favor of same-sex couples’ marriage rights in the 2000s, relying, as Vermont had, on provisions in their states’ constitutions.
2003: Goodridge v. Department of Health – Massachusetts Supreme Judicial Court
Seven same-sex couples sued Massachusetts for the right to marry, and the state’s high court ruled in their favor in a November 2003 decision. Although there were attempts to amend the state’s constitution before the ruling went into effect, those efforts failed and the first same-sex couples legally married in the United States on May 17, 2004.
2008: In re Marriage Cases – California Supreme Court
The California Supreme Court ruled in favor of same-sex couples’ marriage rights, but the window for legal marriages was brief — as voters later that year approved Proposition 8, which amended the state’s Constitution to bar same-sex couples from marrying.
2008: Kerrigan v. Commissioner of Public Health – Connecticut Supreme Court
The Connecticut Supreme Court followed, making Connecticut the second state that allowed same-sex couples to marry.
2009: Varnum v. Brien – Iowa Supreme Court
The Iowa Supreme Court made history when it issued the first unanimous decision affirming the right of same-sex couples to marry — a decision that also led to Iowa becoming the first state in the Midwest where same-sex couples could marry.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I&rsquom Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Evelyn Hildebrand: Welcome to The Federalist Society&rsquos virtual event. This afternoon, June 1, we discuss &ldquoThe Equal Rights Amendment: Then and Now.&rdquo My name is Evelyn Hildebrand, and I&rsquom an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today&rsquos call.
Today, we are fortunate to have with us a very distinguished panel. I will introduce our moderator, the Honorable Eileen J. O&rsquoConnor, and she will introduce our panelists this afternoon. Eileen is currently in private practice at the Law Office of Eileen J. O&rsquoConnor, PLLC. She was previously an Assistant Attorney General for the Tax Division of the DOJ. She&rsquos also the chair of The Federalist Society&rsquos Administrative Law & Regulation Executive Committee Practice Group, the sponsor of today&rsquos event.
After our speakers give their opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along. If you have a question, please enter it into the chat or the Q&A box at the bottom of your screen, and we will answer those questions as we&rsquore able as the event proceeds.
With that, thank you for being with us today. The floor is yours, Lee.
Hon. Eileen O&rsquoConnor: Thank you, Evelyn. It&rsquos a pleasure to be with you all today. Thank you for joining us. I know this will promise to be and does promise to be a very interesting discussion.
First proposed in 1923, the Equal Rights Amendment was finally passed by the U.S. Congress in 1972 with a seven-year deadline for its ratification. With the deadline approaching, but the requisite 38 states not having voted to ratify, Congress approved, and President Carter signed, a three-year extension to 1982. At the end of the extended ratification period, however, only 35 states had voted to ratify the amendment, and 5 of those had already voted to rescind their votes.
Several states and the U.S. Congress are now revisiting the Equal Rights Amendment, raising a variety of issues which our speakers will address. But before introducing the speakers, let me provide a bit of context for 1972&rsquos introduction of the Equal Rights Amendment.
Roe v. Wade was being argued in the United States Supreme Court. Congress was enacting Title IX to provide female students the same opportunities to participate in school sports as were provided for boys. Gloria Steinem founded Ms. magazine and erased from U.S. society the requirement to identify a woman by her marital status, Miss or Mrs., as men are always Mr. without regard to whether they&rsquore married. Finally, a tax attorney by the name of Martin Ginsburg got his wife, a law professor named Ruth Bader Ginsburg, interested in a tax court decision denying a never-married man a deduction to which the tax code entitled any similarly situated woman.
With that backdrop firmly in mind, our panelists today will each provide ten minutes or so of opening remarks, followed by their discussion with each other and with me, and then we will turn to your questions.
Our speaker are, first, Steve Andersson, who is Executive Director of GOP4ERA.org. Appointed by Illinois Governor Pritzker, he served as Human Rights Commissioner for the state. A retired member of the Illinois House of Representatives, Representative Andersson was floor leader for the House Republican caucus, overseeing all debates on the House floor.
During his last session in the Illinois House, Representative Andersson was the chief Republican sponsor of the Equal Rights Amendment, which passed the Illinois legislature, making that state the 37th to vote to ratify the Equal Rights Amendment to the United States Constitution. Since its passage in Illinois, Representative Andersson has travelled the country advocating for the ERA&rsquos ratification in additional states. He&rsquos been a practicing lawyer since 1992 and is licensed to practice in Illinois, the Seventh Circuit, and the United States Supreme Court.
Going second will be Jennifer C. Braceras. She directs the Independent Women&rsquos Law Center and has served on the United States Commission on Civil Rights. An expert on Title IX of the Education Amendments of 1972, Ms. Braceras has taught courses on civil rights and constitutional law at both Boston College Law School and Suffolk University Law School. A graduate of the Harvard Law School, Ms. Braceras served on its Law Review. After law school, she clerked for two federal judges and practiced labor and employment law with the Boston law firm Ropes & Gray.
Ms. Braceras&rsquos columns have appeared in a variety of publications, including The Wall Street Journal, The Boston Globe, The Hill, and National Review Online. Along with her colleague Inez Stepman, she hosts &ldquoAt the Bar,&rdquo a bimonthly virtual happy hour discussion about issues at the intersection of law, politics, and culture. The Federalist Society is proud to have her a member of its Board of Visitors.
With that, Steve, let me turn the discussion to you.
Rep. Steven Andersson: Thank you so much, Eileen. It&rsquos a pleasure to be here and an honor to be asked to be a part of this Zoominar or Zoom conversation.
As we get started in this conversation, I think it is important to talk about really the purposes of the Equal Rights Amendment, why it was ever proposed, why we continue to advocate for it. And I would characterize there to be three reasons, in my mind, for doing that, the first being, perhaps, the softness, which is as an inspirational document. We are, amongst modern Western democracies, I believe, the only country that lacks a statement in its founding documents regarding the equality of rights under the sexes.
When we talk about young people, young women and young men, quite honestly, we oftentimes refer to the fact that it is important for them to see people who look like them in positions of power as role models. And I know that with the recent election of President Biden and Vice President Harris, many observations were made for young persons of color, young women of color, who said, &ldquoNow look at what I can observe. I can see a person in the second highest position in the land who looks like me,&rdquo that aspirational or inspirational aspect.
Well, the same is true of our founding documents, is that right now, you will not find a reference to women in the Constitution. And that is something that needs to be corrected, and the ERA does that. Now, admittedly, that&rsquos a fairly soft reason for an amendment, but I still think it is of value and is worth talking about.
The second, though, is what I would characterize as more the hard reasons for it, the second and the third. So the second reason is the fact that right now, we know that the levels of scrutiny that the courts apply to a variety of classes of discrimination are not the same. When we talk about race discrimination, the standard is the most high standard possible, which is strict scrutiny.
But we also know that under the Fourteenth Amendment, which is where that case law evolved, that is not the case for discrimination based on sex or gender. That operates under an intermediate or heightened standard of scrutiny, and then for reference, of course, there is the lowest standard, which is rational basis review. So sex-based discrimination claims are not evaluated at the same heightened level that race is. That is something that needs to be changed. It&rsquos important. It&rsquos critically important that sex is evaluated at that same heightened level.
But I talked about a third reason, and the third reason is this. It is that I would never deny that we have made incredible leaps forward in the rights of all people, no question about that. We&rsquove made statutory leaps. In Illinois, we recently passed updates to our Equal Pay Act, for example, that prohibit inquiries into prior wages, the belief being that prior wages set the stage for what one might make in the future. So we continue to make strides. Our case law, even the creation of the doctrine of intermediate scrutiny, is an example where we have made strides forward.
And then, of course, culture itself. Culture is always evolving, and I would say that the views and the perspectives of people from the 1970s when the ERA was originally passed in Congress are dramatically different than what they are now, and certainly dramatically different than what they were in 1923 when Alice Paul originally started proposing this. So we have made great strides, no question about it.
But all of those strides are subject to reversal because none of them are permanent. The only thing that is reasonably permanent in the United States as far as law is concerned is the Constitution. And of course, not even that is permanent, but it&rsquos about as close as we can get. We have seen in recent years backsliding on a variety of issues. We saw during the Trump administration rollbacks with regard to the military and transgender rights. To suggest that because we have made progress in these areas is to suggest that we will never reverse or go back, I think, is a miscalculation on people&rsquos part. We need to be able to continue to be assured that there is a backstop, and that backstop is the Equal Rights Amendment, or would be.
Now, of course, one of the questions that I&rsquom sure we&rsquore going to get into in more detail after my remarks is the question of could we even do this? Didn&rsquot it already expire? Wasn&rsquot there already an expiration? And I want to address that at the outset because if I believed that, I wouldn&rsquot have been the chief co-sponsor for it in Illinois in 2018 when we passed it.
And in fact, my belief is strong that if one looks at the original language of our Constitution when it talks in terms of what is required to amend our Constitution, it is clear. And what is that? It requires a two-thirds passage of the given resolution for the amendment by Congress, and then three-quarters of the states to ratify it. That&rsquos it. There&rsquos no deadlines. There&rsquos no anything else that&rsquos proposed in the Constitution.
Now, for me, and I will readily admit case law doesn&rsquot agree with me on that right now, but that doesn&rsquot mean that I have to concede the point that as a fairly strict constructionist myself, I read that when the Constitution makes explicit and it&rsquos clear and there&rsquos no vagueness to it, you apply it as written. And in this case, there&rsquos no vagaries as to what was required. There&rsquos just those two elements. So the concept of a time frame is one that I think is a great question, at least, and in my opinion, not really appropriate.
But then, the other questions that we&rsquoll probably confront as we go forward concern where that deadline actually lies in the resolution, and then, of course, what do we do with recissions that have occurred, and what do we do with an archivist? But I think that&rsquos going to be the basis of our conversation, so at this point, I will pause, and I believe it&rsquos to turn it over to Jennifer. Thank you all.
Jennifer Braceras: Thank you, Steve.
Rep. Steven Andersson: My pleasure.
Jennifer Braceras: I want to thank you for your presentation, but also for acknowledging the great amount of progress that has been made in the decades, indeed, the half century since the Equal Rights Amendment was proposed by Representative Martha Griffiths in 1971.
I would argue that 50 years ago, the world was almost a completely different place for women and girls. I was four and a half when the Equal Rights Amendment was introduced by Representative Griffiths, and I would content that the world my mother lived in was very different than the world that I grew up in, and the world that I live in today, and the world that my daughters will inherit. Because of the seismic social and legal change during this time, it&rsquos my contention here today that the ERA is not only no longer necessary, but that it is actually dangerous for women and girls, and ultimately void.
So let&rsquos start with the fact that the ERA is unnecessary in 2021. Lee talked a little bit about what was going on during the 1970s in her introduction, but just to remind people, most of whom probably don&rsquot have a large consciousness of what it was like in the &rsquo70s&mdashI certainly don&rsquot from personal memory, being only four at the time&mdashbut in 1971, it was perfectly lawful to discriminate against pregnant employees. It was perfectly lawful to discriminate against women in granting credit. It was lawful to refuse to sell or rent housing to women, to refuse to provide them equal educational opportunities. Women could be banned from serving on juries or from working in certain professions.
And indeed, the government could treat men more favorably than women for almost any reason. Workplace sexual harassment was not considered to be a form of discrimination, and there were few athletic opportunities for women and girls. The ones that did exist were extremely poorly funded.
So these legal inequities and the Supreme Court&rsquos unwillingness to strike down policies that discriminated against women were really the driving force behind the effort, which began in the 1920s almost immediately after women earned the right to vote, to pass a constitutional amendment to guarantee equality of the sexes.
But as both Lee and Steve have acknowledged, around the time that the ERA starts being debated, both in the Senate and then in the states, things began to change. The Supreme Court ruled for the first time that unequal treatment of men and women violates the Equal Protection Clause of the Constitution. And over the following three decades, the Court broadly applied the equal protection mandate to sex-specific policies.
From the perspective of 2021, it&rsquos now clear that the Equal Protection Clause, in fact, outlaws government policies that unfairly discriminate on the basis of sex. And that is permanent. That&rsquos not something that can or will change. Moreover, the U.S. Code is replete with prohibitions on both private and public discrimination in employment, education, credit, housing, and more. And as a result, constitutional scholars on both the right and the left have concluded that we are now living under a de facto 1970&rsquos era ERA.
Indeed, no less an authority than the late Justice Ruth Bader Ginsburg, an early supporter of the ERA, observed that, quote, &ldquoThere is no practical difference between what has evolved and the ERA,&rdquo unquote. Not only are women and men today legally equal, but our society has generally embraced the principle that men and women deserve equal access and equal opportunity.
In addition to significant changes in law and attitude, or perhaps because of them, women have achieved enormous social, economic, and political success in the past half century. Prior to the advent of the coronavirus pandemic, it was safe to say that women were more economically prosperous than ever before. Female unemployment was at an all-time low. Women comprised nearly 50 percent of the workforce, 40 percent of managerial positions, up from 20 percent in 1972. They controlled the majority of wealth in America and owned 40 percent of American businesses. Compare that to 5 percent in 1972.
These economic advances are perhaps not surprising, given the massive increase in educational attainment of American women during this same timeframe. Women today earn the majority of bachelor&rsquos degrees, the majority of master&rsquos degrees, the majority of doctorates, and now, just recently, they have begun to outnumber men in both law school and medical school. Women&rsquos strides in the athletic arena, I could go on and on about those. A 545 percent increase in women playing college sports since 1972, or between 1972 and 2016. Increases in the political power and clout of American women.
Now, some might say, &ldquoWell, 50 percent of our legislature isn&rsquot female.&rdquo Well, that&rsquos true, but we have the largest number of women elected to Congress ever in 2021. And significantly, when women choose to run for political office, they are today as likely to win as men. Also importantly, women are more likely than men to be registered to vote, and they are more likely than men to actually vote. So at the polls, women are the majority and wield great political power in this country.
We did not need to amend the Constitution in order to achieve these successes. But if American law already requires equal treatment of men and women, and it does, what&rsquos the harm, as Steve says, of putting women in the Constitution for aspirational or inspirational purposes? And I would argue, a lot. The Constitution doesn&rsquot mention women, but it also doesn&rsquot mention men. It is as neutral document. And there&rsquos not a single right contained in our governing charter that belongs to my son but not my three daughters, not one. And there&rsquos no compelling reason to start adding groups to the text of the Constitution just so people can feel inspired or acknowledged. So I don&rsquot really buy the aspirational aspect.
But I think there&rsquos a bigger problem with, quote, unquote, &ldquoadding women to the Constitution,&rdquo and that is that it will more than likely backfire on women and girls because, as I stated previously, our society has achieved the primary goals of the ERA. And because of that, adding it now would likely require something more than equal treatment of similarly situated persons, which the law already requires.
In fact, Steve said in his opening remarks that that&rsquos exactly what he hopes it will achieve, that he hopes it will achieve strict scrutiny for women under the Constitution and that the courts will begin to treat sex in the same way that it treats race. So men and women would be treated the same, irrespective of circumstance not just equally, but the same.
But I don&rsquot think that&rsquos a good thing, and I don&rsquot think when you think about the implications of that most women would think it&rsquos a good thing because sex and race are not the same. And there are very good reasons why the court has applied a lower lever of scrutiny to sex-based policies.
Biological sex differences sometimes provide extremely important grounds for distinction, whereas race does not. For example, maintaining separate prisons for male and female inmates makes obvious sense, whereas housing black and white inmates separately does not. The same is true with athletic teams and other private spaces where men and women don&rsquot need to be together. By recognizing the difference between race and sex, courts have carved out a space to accommodate these legitimate distinctions between males and females while still prohibiting discrimination that is unfair.
So if the ERA is adopted now, that will almost certainly change, and courts will no longer have the flexibility to consider biology or privacy when determining the constitutionality of sex-based policies. In practice, it could require women not only to register for the Selective Service, but it could require the military to send equal numbers of men and women into combat. I say that because the proponents of the ERA, many of them, have argued that it would allow a disparate impact analysis on the basis of sex.
Another thing the ERA could potentially do now if adopted is prohibit the government from operating or funding any female-only spaces such as women&rsquos shelters, sororities at public colleges, etc. And it could prohibit hundreds if not thousands of programs that are designed to support women and girls, such as federal grants to increase women in STEM or grants administered pursuant to the Violence Against Women Act.
There&rsquos another substantive problem with adding the ERA to the Constitution, one which Steve alluded to, and that is the ever-changing definition of the word sex. In 1971, the meaning of the term was obvious. It referred to biological sex, and the ERA was proposed to prevent the government from favoring one biological sex over another.
Today, particularly after the Bostock decision, that definition is up for grabs. And when Steve referred to backsliding with respect to transgender rights, I think that that sort of sums of the definitional problem of what sex means today. And certainly, our society can choose to protect transgender individuals from discrimination, but before we amend the Constitution, I think we need to have a national conversation on what exactly we are doing and what exactly the word sex means.
Which brings me to my third point, and that is that the ERA has expired. Given the enormous changes in the legal and social landscape over the past half century, as well as changed understandings of language, it&rsquos not clear that the state legislators who voted to ratify the ERA in the &rsquo70s would do so today, or that the American people would support it now if they understood the full ramifications.
At least 62 percent of all eligible voters, including me and my three daughters, were not born or were too young to vote when the ERA was first debated. And we are entitled to a full public conversation and debate about this amendment. Denying us that opportunity would strike a serious blow to the requirement outlined by the Supreme Court that amendments be ratified by reasonably contemporaneous supermajorities. And for these reasons, I believe the ERA expired last century, irrespective of technical disputes about deadlines, which in and of themselves should be dispositive.
But even if I were to concede that the deadline was somehow invalid, I still think that, based on changed circumstances over half a century and current Supreme Court jurisprudence, that the ERA has, in fact, expired. And because of that, I don&rsquot think you can cobble together ratifications from 1971 with ratifications in Illinois, Nevada, and Virginia from this century.
The only way to determine whether large supermajorities of Americans today want the ERA to be a part of the Constitution is, to quote Justice Ginsburg again, &ldquoput it back in the political hopper and start over.&rdquo Only then can we have a national, contemporaneous conversation about sex discrimination and the advantages and disadvantages of amending our governing charter.
And I think I&rsquoll end by saying it&rsquos worth noting that the last time the citizens of the United States had a conversation like that about the merits of the Equal Rights Amendment, the ERA went from being almost guaranteed passage to dead on arrival once Americans woke up and started really talking about it. So I do not want to allow the proponents of the ERA to short-circuit the constitutionally proscribed process and that national conversation simply because they are afraid to lose the debate again.
Hon. Eileen O&rsquoConnor: Thank you so much, Jennifer. Steve, would you like to address some of those points or make some of your new ones?
Rep. Steven Andersson: Sure. Thank you. And thank you, Jennifer, for your comments. I appreciate them greatly.
A couple of observations. One is you had mentioned Selective Service. I suppose you were indicating that that would be a problem or that that was a negative. Quite frankly, back in the 1970s, a woman named Phyllis Schlafly, who most people are familiar with who have any exposure to the ERA, also used that as one of her parade of horribles of things that would happen would we pass ERA. I actually have her &ldquoStop ERA&rdquo pamphlet available to me, which goes through the other parade of horribles, which are all fairly ridiculous.
This was the only one that she got right. And I would agree that Selective Service would, in fact, be applicable to -- or the requirement to register for Selective Service would be applicable to men and women, and quite frankly, it should be. We shouldn&rsquot be putting women on a pedestal and saying that they don&rsquot have the same obligations as citizens that men do.
But that is not to suggest that ipso facto, that means that women have to serve on the front lines in the same situations as men. Quite frankly, it means that we&rsquore talking about bona fide occupational qualifications. In other words, if a person qualifies for front line combat because of their physical abilities or acumen, then certainly they will be, regardless of sex, on the front line. On the other hand, if they do not, again, regardless of sex, and they should serve a more back of the field position, that&rsquos where they&rsquoll be put.
It&rsquos no different than any other BFOQ, bona fide occupational qualification, that we employ legitimately in the realm of the human rights arena where we judge it not based on a classification but instead on qualifications. So I would argue very, very vehemently that I think that that&rsquos a great thing. That&rsquos something that should happen.
The other comment that Jennifer made that I -- and I don&rsquot want to rebut absolutely everything because I appreciate your comments, but one of them was that programs that advantage women would be eliminated by the ERA, things like programs for women and girls, things that lift up and enhance opportunities for women. And I would argue that that is also incorrect, the reason being is it&rsquos no more true with race-based selection or race-based discrimination than it is with women. In other words, opportunities for affirmative action continue to exist in law, and the commentary has generally been, remember, we can discriminate if you meet the strict scrutiny test.
And one of the areas where in the realm of the Fourteenth Amendment and race is concerned where that standard has been met, where there is legitimate discrimination, is in the area of uplifting individuals. In other words, positive discrimination when you talk about people who have been historically discriminated against, they have an opportunity to be uplifted. So to suggest that everything will be equal, the idea that bathrooms and everything else, that all distinctions will be erased is not reflective of what the amendment would actually do.
The other thing I would point to in rebutting that rather, in my opinion, extreme view of what the amendment would do is to look to history. We have about 15 to 18&mdashI&rsquove lost track&mdashstates that have identical state-level ERAs in their constitution. Illinois, with the exception of one comma, I believe, that is not identical, does exist. And in those 50 years of state-level constitutional ERAs, there has been no parade of horribles. This idea that we&rsquore going to lose all distinctions between men and women simply didn&rsquot happen. It is not a reality.
And last, on the question of whether or not -- and this is more of a policy question that I think Jennifer brought up than it is a legal question of how should we go about doing this in 2021 versus 1972. The courts really have talked about the idea of consensus when we talk about a constitutional amendment. The key element, if you will, the key nugget is that there is consensus among the states to ratify a new constitutional amendment. Certainly, most of the time, that would indicate contemporaneousness in other words, that it&rsquos done in a fairly short amount of time. But the reality is that isn&rsquot always going to be the case, certainly in this situation.
And when we look at it, the question is, have our views towards the need for equality changed? I would say that they have not. In fact, they&rsquove gotten more significant. And I would agree with Jennifer when she says that we have, in many ways, a de facto ERA. I think you were quoting Justice Ginsburg, perhaps. And if so, I think the belief of most people in 2021 is that the ERA is still a consensus-driven idea amongst the states.
So if consensus, which is the core underpinning of the idea of amending the Constitution, I believe it exists. And in fact, I can tell you it exists because in the polling we&rsquove done on the advocacy side of the ERA, 97 percent of people, regardless of party, agree that the ERA should be a part of the Constitution. And about 86 percent of them believe it already is, believe it or not. So most people --
Hon. Eileen O&rsquoConnor: -- Hey, Steve, I think it&rsquos time to let Jennifer respond to your points. Thank you, Steve. Jennifer?
Jennifer Braceras: A couple of things there. With respect to polling, the polling data is interesting because the same was true before Phyllis Schlafly came on the scene. And that is precisely the reason we need to have the conversation because Phyllis Schlafly woke up a lot of people to the dangers of the ERA -- what she saw as the dangers of the ERA at that time. I&rsquom probably unique in Republican or conservative circles in that I think I would have been for the ERA at that time. But I&rsquom against it now for precisely the reasons I articulated in my opening remarks. But Phyllis was able to convince a large number of people not to support the ERA, and that&rsquos why it went down in defeat.
And when the Supreme Court talks about consensus or reasonably contemporaneous consensus of the states, it&rsquos important that that consensus be informed. And our country hasn&rsquot had the conversation that it had in the late 1970s about the ERA. And in fact, I would argue the conversation that Steve and I are having right now is the type of conversation we need to have all over the country and in states across the country.
But the fact that Steve and I disagree on how the ERA would be interpreted and how the ERA would be implemented just goes to show that there is a lack of clarity that needs to be hashed out, and perhaps even rewritten to make clear what it is we would be doing because changing the Constitution is not like changing your mind. You can&rsquot necessarily change it back again. And obviously, there is the one rare exception of Prohibition. You can change it back, but it&rsquos very difficult. And so these things need to be hashed out by society in real time.
The other point I would make about the state ERAs, and I&rsquoll just give you one example. I live in Massachusetts. Massachusetts has a state ERA. And because of the Massachusetts state ERA, boys in Massachusetts can not be prohibited from trying out for girls&rsquo sports teams. And so I will give you a very real example that my daughter, who plays field hockey in high school, competed this year against not one but three teams that had multiple male players on it.
Now, we can have a debate about whether that&rsquos fair or whether that&rsquos not fair, but the bottom line is the ERA compelled it. So you cannot say that it will not have real life implications for my daughters, for your daughters, for athletes across the country, for female prisoners across the country who will be integrated with male prisoners if this happens. It will have these implications. And we need to think long and hard about whether that&rsquos a good thing or a bad thing.
Hon. Eileen O&rsquoConnor: Thank you, Jennifer. I&rsquod like to ask a question of Steven. I was interested that you mentioned bona fide occupational qualification. And this is not my area at all, but I read the newspapers and I think I&rsquove seen news reports of occupational requirements, example, for firemen or firefighters where the requirements have had to be changed because women said they were sexist because they required a certain amount -- that you be able to run at a certain speed, that you be able to carry a certain load. And women said, &ldquoNo woman can do that. Those are sexist qualifications.&rdquo So they had to be loosened so that women could qualify. Would you address that?
Rep. Steven Andersson: Sure. And that really goes to the bona fide part of a bona fide occupational qualification. And the argument in those realms is that it wasn&rsquot bona fide. In other words, if we can determine that what is actually necessary to be a firefighter or to be a policeman&mdashI apologize for my sexist term&mdasha police officer, if we can demonstrate that the standards were set so high that, in fact, women could not qualify for it, but those standards set at those levels were not necessary to actually do the job, that violates the bona fide part of it. In other words, it&rsquos not a good-faith standard.
So there&rsquos always going to be an evaluation of what, in fact, is a bona fide occupational qualification on both sides of that test. And in those cases, there may be some situations where those will be upheld as being appropriate, and maybe some that won&rsquot. But again, as long as it&rsquos a legitimate bona fide qualification, I think that that&rsquos one of those areas where it&rsquos perfectly appropriate to apply those. And that&rsquos not to say that all women will fail in that category. I know quite a number of women who are, quite frankly, way stronger than I am, and were back in high school, even. There are distinct -- individuals are individuals.
Hon. Eileen O&rsquoConnor: And so the question is how strong do you have to be in order to do the job? Jennifer, do you have some thoughts on that?
Jennifer Braceras: Well, my thoughts are, particularly with respect to the military, Steve&rsquos right when he says it&rsquos not a foregone conclusion that women and men will be sent to the front lines in equal numbers. Of course it&rsquos not. But the advocacy groups in favor of ERA, and you can look on their websites, explicitly say that they hope that the ERA will be used to allow disparate impact litigation. And under disparate impact litigation, courts will look at percentages. They will look at outcomes, not equal treatment, and they will say, &ldquoWell, are equal number of men and women serving in these roles, going to these places, being put on the front lines?&rdquo
That challenge will be made to combat policies that don&rsquot evenly distribute the roles between men and women, will be made possible by the ERA if its proponents get their way. That is what they are hoping for. They want the ERA to require strict scrutiny and to require disparate impact claims with respect to sex. And I would argue that because sex is fundamentally different than race, we should not do either of those things.
Hon. Eileen O&rsquoConnor: Thank you. It&rsquos interesting, Phyllis Schlafly, who you&rsquove mentioned, almost singlehandedly got the ERA not to be ratified by its 1982 deadline. By 1977, I think, there were 30 states that had voted to ratify it, 5 of which were -- 35 had ratified it, 5 of which said, &ldquoNo, never mind. We changed our minds.&rdquo
Aside from that, though, Phyllis Schlafly got involved when the ERA was on the brink of ratification, and she, through her speeches and writings, just absolutely turned the tide. And she did that by focusing on a couple of the items that you&rsquove mentioned. She said that the Equal Rights Amendment will bring about gender-neutral bathrooms, same-sex marriage, and women being drafted.
And we have the first two already, and the third one is actually the subject now of some litigation that&rsquos in the United States District Court for the District of Columbia. It&rsquos the National Coalition for Men v. Selective Service. And it says the fact that only men are required to register for the draft makes it unconstitutional. Steve, do you have a thought on that?
Rep. Steven Andersson: Yeah. And actually, if I could just reflect just a bit on Phyllis Schlafly as well because, obviously, we&rsquove talked quite a bit about her. When Jennifer talks about her waking the country on the issues -- and you&rsquore certainly right, by the way. I would give her credit where credit is due that she stopped the ERA back at that time. So I will certainly give that credit.
But I&rsquom actually staring right now at the Eagle Forum &ldquoStop ERA&rdquo pamphlet that she used. And remember, Phyllis Schlafly is a native of Illinois, of my home state, so I feel particularly compelled on this issue. I want to give you some of the woke examples of what Phyllis argued would happen should the ERA pass. Number one, the age of consent for sex must be lowered to age 12. Apparently, that would happen. Prostitution would become legalized by passage of the ERA. Boy Scouts and Girl Scouts must be sex integrated, even though there&rsquos no state action involved in that. Words like husband and --
Hon. Eileen O&rsquoConnor: -- But that&rsquos actually happened.
Rep. Steven Andersson: Words like husband and wife must be eliminated. But my favorites are, like I said, when I look at this, the outright misstatements about the fact that the age of consent for sex has to be lowered, or prostitution legalized, or that the government must provide comprehensive childcare, which I would argue is a good thing, but apparently that was a bad thing as well. But I&rsquoll turn to your --
Jennifer Braceras: -- Well, we can argue till we&rsquore blue in the face about whether Phyllis Schlafly was right at the time or whether her tactics were appropriate or honest or correct. But that doesn&rsquot really matter now because my whole point is that the goals of women like Ruth Bader Ginsburg who supported the ERA have been achieved, and therefore, we don&rsquot need it. And if we add it to the Constitution now, it will go much further.
And I&rsquom not saying that there will be a whole -- well, I am saying there will be some parade of horribles that will befall American women, but what I&rsquom really saying is we need to discuss as a country whether we think those things are horrible. I may think that it&rsquos horrible. You may not think that some of these things are horrible. But we need to have that discussion because the ERA will do much more if passed today than it would have if passed in the &rsquo70s.
So we need to talk about do we want our daughters who play field hockey to have to compete against boys? Do we want our daughters to register for the Selective Service? Do we want our daughters to potentially be sent to the front lines so that we have even numbers of men and women on the front lines? Do we want females to be housed with men in government-run prisons? These are the questions we need to ask, and we can&rsquot just shoehorn the Equal Rights Amendment into the Constitution because three states this century said they are in favor of it three states.
Hon. Eileen O&rsquoConnor: Let&rsquos turn to questions from the audience. I&rsquom not sure -- yep, there&rsquos a question mark at the end of this, so I&rsquoll read it. The Fourteenth Amendment and Equal Protection Clause have been stressed to include women in a way that was never intended. As our courts return to a non-activist interpretation ethos, what is the constitutional basis for the rights women have at the federal level? Jennifer, can you go first on that?
Jennifer Braceras: Well, as I started to say before, and you never really know how you would have behaved or what you would have believed at the time, but I think I may have been for the Equal Rights Amendment in the 1970s precisely because the Equal Protection Clause had not at that time in the very early &rsquo70s been interpreted to apply to similarly situated men and women. Once that changed, and it did change in a case called Reed v. Reed, I certainly don&rsquot see any basis for amending the Constitution further.
Now, you can argue that the Equal Protection Clause was never intended to be applied that way. The fact of the matter is it has been applied that way, and it will continue to be applied that way. That&rsquos precedent. That&rsquos the law of the land. No one&rsquos going back.
Hon. Eileen O&rsquoConnor: Excellent. Steve, do you want to weigh in?
Rep. Steven Andersson: Sure. Actually, I appreciate the question, especially when you look at the comment of former Justice Scalia, who made the rather remarkable statement that while the Constitution certainly does not require discrimination against women, it does not prohibit it. In other words, he was reflecting on the fact that perhaps his view was the Fourteenth Amendment had been stretched too far and did not apply to this.
Jennifer Braceras: But it does now.
Rep. Steven Andersson: And when we talk about this concept, this goes back to my initial argument that we need something that is a backstop that is permanent because, quite frankly, precedent does get overruled. Precedent does evolve.
Right now, there&rsquos a huge conversation in the land about whether Roe v. Wade, which may would argue is the stated law of the land for an equally long period of time as the amendment we&rsquore talking about, that, in fact, that could get overturned. I don't know if that&rsquos true or not, but the reality is that question is being asked. If that can be overruled, these other elements can be overrules as well, thus giving rise to, and again, I appreciate the questioner&rsquos maybe implicit comment that if we want to have protection for women in the Constitution, we ought to put it in there, and that is the ERA.
Jennifer Braceras: But it&rsquos funny because you talk about protection for women. And if you pose the question that way, sure, everybody supports protection in the Constitution for women. Everybody supports equal rights for women. I don't know anyone who doesn&rsquot support that in 2021.
The question is what does the text of the Equal Rights Amendment mean in 2021? What does that mean, how will it be implemented, and do we want those things to occur in society? We can&rsquot just shoehorn that into the Constitution and then figure out later what it means. When you&rsquore amending the Constitution, there needs to be consensus and an understanding of what we&rsquore doing.
Hon. Eileen O&rsquoConnor: And it&rsquos important to remember that the Supreme Court can revisit and reconsider and overrule its prior decisions, but in order to undo a constitutional amendment, you need another one think Prohibition.
Let me go to the next question from the audience. What do women do when hostile legislators overturn laws and acts that benefit women such as Title IX, the Lilly Ledbetter Fair Pay Act, and the Violence Against Women Act without a constitutional amendment like the ERA?
Before you answer that, let me mention that one of Phyllis Schlafly&rsquos concerns was that whether legally or by tradition, there were certain protections for women, and she was concerned that an Equal Rights Amendment would mean that men would never have to pay alimony. And another thing that did happen, and I don&rsquot recall whether she was concerned about this or not, that no-fault divorce is something that is considered to have largely harmed women. I don't know whether you can put these together. Jennifer, do you want to take that first?
Jennifer Braceras: Yeah. Nobody&rsquos overruled Title IX or overturned Title IX yet. I think the biggest threat to Title IX, frankly, right now, is the allowance of male-bodies athletes to compete in women&rsquos sports. But that&rsquos not a threat that&rsquos coming from the right.
What I would say is, going back to my opening remarks, women are the majority of the electorate in this country. Women exercise enormous political power. And if the women of America want something to happen legislatively, they have the power to make that happen. They have the power to elect candidates who will support their views. And we shouldn&rsquot presume that all women or the majority of women will vote a certain way, but the point is that women have political power. They are not denied political power in this country, and they can and should exercise it.
Hon. Eileen O&rsquoConnor: Thank you. Steve, do you want to comment?
Rep. Steven Andersson: To the listener&rsquos question, again, you&rsquore making a bit of my point. Again, no one is attempting to repeal Title IX that I&rsquom aware of, but the Violence Against Women Act has yet to be fully renewed, or if it has, it would only have been in the last week or so. I don&rsquot recall. There are opportunities for backsliding.
And while I fully respect Jennifer&rsquos point of view about the advances that equality has made in the last 50 years, for the time that I sat on the Illinois Human Rights Commission, I can assure you, we&rsquore not done. The discrimination that women suffer continues to exist, notwithstanding the advances that have been made.
And so the idea, the very idea that we&rsquore good, we&rsquove done enough, now let&rsquos just go, is just not based in the reality that I live and I see every day of my life, which is that women continue to be discriminated against, both explicitly and, let&rsquos say, sub rosa where things do not happen that maybe we can&rsquot prove it. And oftentimes, I had to dismiss a lot of cases that came in front of me because of that because I couldn&rsquot prove it explicitly, but pretty certain that there were things that were still happening. So the idea that everything is good is just not true.
Jennifer Braceras: Obviously, there&rsquos still discrimination against women. The point is, though, that now the law provides remedies. And amending the Constitution will not solve the problems you identify of private discrimination. That exists. There are remedies for it. And thankfully, we see much, much, much less of it than we did in my mother&rsquos day. I believe that amending the Constitution is a big deal, and I would argue that we don&rsquot amend our Constitution simply because of a hypothetical that things might backslide in the future on certain topics.
What I would ask people who say they&rsquore in favor of the ERA, I would ask, name one thing that your sons can do in this country that your daughters cannot, one thing. I don't know what it is. My daughters have all the choices in the world. The world is their oyster. It doesn&rsquot mean they won&rsquot encounter problems. It doesn&rsquot mean they won&rsquot encounter discrimination. It doesn&rsquot mean they won&rsquot come across people who are unkind or who treat them poorly. All of those things are part of life.
But my daughters will face hardships the same way that my son will face hardships. And frankly, I&rsquom more concerned about the opportunities and the -- I&rsquom more concerned for my son&rsquos future than I am for my daughters&rsquo. I think my daughters have the opportunity to do anything they put their minds to in this country. There&rsquos nothing stopping them.
Hon. Eileen O&rsquoConnor: Excellent. We&rsquore getting close to the end. Let me just make one point. It&rsquos sort of a response to something you said, Steve, about Title IX is not being attacked. There is actually -- I read some opinion that letting boys play girls&rsquo sports is actually undoing Title IX, so I think that there might actually be a threat there. I see that Evelyn has popped back up on the screen, which lets me know that we&rsquore reaching the end of our time. So let me ask you for some closing thoughts. Steve, you go first.
Rep. Steven Andersson: Well, number one, thank you to The Federalist Society. Thank you to Eileen and to Jennifer for a really wonderful discussion. I think that one thing I certainly agree with Jennifer about is this sort of a conversation, this opportunity to hear both sides really fully fleshed out is what the people of the United States need to hear, regardless of whether we&rsquore talking about ERA or whether we&rsquore talking about women&rsquos rights in general. So I sincerely want to thank you both, or all, for the opportunity to be a part of this.
I hope that our discussion has helped illustrate the differences between the points of view, but I&rsquoll end where I began, which is simply that this is both inspirational and aspirational. I think that that&rsquos important. But more importantly, if we think that we can continue forward with the threats to our democracy that we have seen in recent years, including January 6 of this year where we saw an attempt at an overthrow, a violent overthrow of our nation&rsquos capital, and just think that we can sit back and be comfortable with the idea that we have statutes and we have case law that protects us, but we don&rsquot have a permanent constitutional amendment, I think that&rsquos a mistake.
But again, I thank you all for the opportunity to be here. This is a wonderful discussion.
Hon. Eileen O&rsquoConnor: Thank you. Jennifer?
Jennifer Braceras: Thank you. Yes, I think that the disagreements that Steve and I have here as far as whether or not the ERA is needed, what it would mean, and how it would be implemented, are precisely the reasons that we need to reopen the discussion again and not just add the ERA to the Constitution by judicial fiat at this point.
The debates that my mother and my grandmother had about the ERA are long over. Society has changed, and if we want to talk about amending the Constitution to add specifically a provision that protects women&rsquos rights, then we need to put it back in the political hopper and start again. And I&rsquod be happy to debate Steve all across the country on whether it&rsquos a good idea, but we need to be able to have those debates.
Hon. Eileen O&rsquoConnor: Excellent. Thank you so much. Let me just change the topic because Steve did, and I don&rsquot think it should go unanswered. I disagree vehemently with your interpretation of the events of January 6. And with that, I close out this discussion. Evelyn?
Suggestions for further reading
Barker, Lucius J., Mack H. Jones, and Katherine Tate. African Americans and the American Political System. Fourth Edition. Upper Saddle River, NJ: Prentice-Hall, 1999.
Clayton, Ed. Martin Luther King: The Peaceful Warrior. Englewood Cliffs: Prentice-Hall, 1996.
Duster, Alfreda M. Crusade for Justice: The Autobiography of Ida B. Wells. Chicago: University of Chicago Press, 1970.
Weber, Michael. Causes and Consequences of the African American Civil Rights Movement. Austin, TX: Raintree Steck-Vaughn Publishers, 1998.
Teaching Center – Supreme Court Decisions & Women’s Rights – Milestones to Equality – Introduction – Interpreting the Equal Protection Clause
The Fourteenth Amendment to the Constitution, ratified in the wake of the Civil War, provides in part that “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This simple phrase, known as the Equal Protection Clause, has spawned a complex body of judicial doctrine. But its original purpose was to ensure that the recently defeated Southern states did not infringe on the rights of the newly emancipated slaves.
Initially, it seemed as though the clause might be limited only to claims of racial discrimination. In its first interpretation of the Equal Protection Clause in Slaughter-House Cases (1873), the Supreme Court held that a group of Louisiana butchers could not rely on the clause to challenge a state monopoly. “We doubt very much whether any action of a State not directed by way of discrimination against [African Americans] as a class, or on account of their race, will ever be held to come within the purview of this provision,” the Court said.
But in fact the Court soon began to expand the reach of the clause beyond its core requirement of equal treatment of the races, holding that it was essentially a directive that all persons “similarly situated” should be treated alike. The issue then became how to determine which groups were in fact similarly situated. A general “rationality” requirement was read into the provision: in order for legislation to pass muster, any distinction it drew between groups of people-any “classification,” in legal parlance-had to be rationally related to the legislation’s purpose. In other words, for the law to treat one group of people differently than another its defender simply had to show that there was a reason for the discrepancy that went beyond mere hostility to the targeted group.
A similar requirement was read into another provision of the Fourteenth Amendment, the Due Process Clause: “Nor shall any state deprive any person of life, liberty, or property, without due process of law.” From the turn of the century through the 1930s, a conservative Supreme Court frequently used the Due Process Clause-and to a lesser extent the Equal Protection Clause-to strike down economic legislation and social reforms on the ground that they were “unreasonable.” In the most groundbreaking of these cases, Lochner v. New York (1905), the Court ruled that a state law setting a daily ten-hour limit on the working hours of bakers was an unreasonable interference with the freedom of workers and employers to enter into contracts.
After 1937, a reaction against the so-called Lochner era set in. The Supreme Court began to apply the rationality requirements of both the Equal Protection and Due Process Clauses so leniently as to render them virtually meaningless. “State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality,” the Court said in 1961, in a fairly typical formulation. “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
But while this permissive attitude prevailed in the context of social and economic legislation, the Equal Protection Clause had not been rendered completely powerless. In 1938, a footnote in an otherwise unremarkable case called United States v. Carolene Products Co. laid the groundwork for much of the Supreme Court’s later elaboration of the Equal Protection Clause. Justice Harlan Fiske Stone, writing for the Court, observed that a more searching equal protection review might be appropriate when “legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments.” Similarly, the Court might want to take a harder look at “statutes directed at particular religious . . . or national . . . or racial minorities.” The theory behind this approach was that the Court might need to step in when the ordinary political process was not adequate to ensure justice-either because the legislation interfered with rights that were central to that process, or because it discriminated against “discrete and insular minorities” who were likely to be victims of prejudice and lacked sufficient power to protect their rights in the political arena.
Under the liberal Warren Court of the 1960s, the split approach outlined in Carolene Products solidified into a rigid “two-tier” system of evaluating equal protection claims. The Court reviewed ordinary, run-of-the mill challenges to social and economic legislation under its low-level “rationality” test. Those claims only had to pass the easy, reasonableness standard. But two kinds of claims warranted “strict scrutiny”: claims that legislation infringed on a “fundamental right,” such as the right to vote, the right to interstate travel, or the right to appeal in a criminal case and claims that legislation had created a “suspect classification.” A classification was “suspect” if it was based on a group’s race, ethnicity, or religion-essentially the “discrete and insular minorities” of the Carolene Products footnote. Discrimination premised on these characteristics, the Court said, was so unlikely to be related to a legitimate state objective that it was in effect presumed to be the product of prejudice and hostility. In order to pass the strict scrutiny test, a legislative classification had to be “narrowly tailored” to achieve a “compelling state interest.” This standard proved so difficult to meet that the strict scrutiny test was sometimes referred to as “strict in theory and fatal in fact.”
After Warren E. Burger succeeded Earl Warren as chief justice in 1969, discontent with the two-tier standard surfaced both on and off the Court. Both Justices John Paul Stevens and Thurgood Marshall criticized the Court’s equal protection jurisprudence, with Stevens declaring that there was “only one Equal Protection Clause,” and Marshall advocating a “sliding scale” approach. “A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause,” Marshall wrote in a 1973 dissent. “This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn.”
While the Court failed to embrace either Stevens’ or Marshall’s views, it did begin to tinker with its two-tier approach so as to render it more flexible. In some cases, the Court applied the rationality test in a relatively rigorous fashion, occasionally using it to strike down legislation as unconstitutional. The justices also expanded the range of closely reviewed classifications beyond race and ethnicity to include illegitimacy and gender. For these last two categories, the Court devised an intermediate equal protection test, falling between rationality and strict scrutiny: legislation that discriminated against women or those of illegitimate birth had to be “substantially related” to achieving “an important governmental objective.”
This intermediate standard has been developed primarily in cases of discrimination against women. But women do not fit neatly into the Carolene Products mold of “discrete and insular minorities”: they are not discrete or insular, nor are they a minority. In order to justify giving them the benefit of heightened scrutiny, the Court has had to rely on another strand of the equal protection doctrine: the idea that people should not be subjected to discrimination on the basis of characteristics that are “immutable”-distinctions, like gender or race, over which they have no control-and that bear no relation to ability. Women, like racial minorities, have historically been subject to severe restrictions on such activities as voting, attending college, and working as lawyers-restrictions that were based on stereotype rather than on the actual capabilities of individual members of the group.
The four cases listed above are landmarks in the development of the Court’s gender discrimination doctrine. As the Court grappled with the appropriate method of evaluating this category of equal protection claim, the justices first tried applying the rationality test in an unusually rigorous way (Reed v. Reed) then came to the brink of adopting gender as a full-fledged suspect classification (Frontiero v. Richardson) and finally settled on an intermediate standard that appeared to represent a workable compromise (Craig v. Boren). In the eyes of some Court watchers, the final case, United States v. Virginia (1996), appeared to raise the standard to the highest level. In any event, the decision has left some questions about the Court’s future course in this area.
Today is #GivingTuesday, help us reclaim the rights of women & girls.
The Equal Rights Amendment would put protection for women and other marginalized genders directly into the United States Constitution.
Aren’t women already protected in the Constitution?
80 percent of people in the United States think that men and women are guaranteed equal rights in the U.S. Constitution. They’re wrong. One short sentence would make all the difference to ensure people protections under the Constitution, regardless of sex or gender.
The original drafters of the U.S. Constitution were all white, landholding (and many slave-holding) men. Women were never part of “the people” they envisioned in the Constitution.
Many years later the Supreme Court interpreted the Equal Protection Clause of the 14th Amendment to protect women to an extent, but a special category was created for gender that offers far less protection than other protected categories like race, religion or national origin.
What is the Equal Rights Amendment (ERA)?
The ERA is a very simple amendment putting protection for women and other marginalized genders directly into the United States Constitution. The entire text of the proposed amendment is:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
According to a 2016 survey commissioned by the ERA Coalition, a whopping 94 percent of people in the United States would support an amendment enshrining gender equality into the Constitution.
When the Equal Rights Amendment (ERA) was passed by Congress in 1972, it was the culmination of a fight that had already lasted nearly four decades—and is still far from over.
Why Wasn’t the ERA Ratified Back in the 1970s and 1980s?
When the ERA passed in 1972, the legislation included a seven-year deadline. Upon reaching the original deadline without achieving the requisite number of state ratifications, advocates for the ERA convinced Congress to extend the deadline until 1982. However, anti-ERA groups and activists ramped up their opposition during that time, successfully mobilizing factions against the ERA and stalling the momentum the movement had enjoyed throughout the country. The 1982 deadline passed with the ERA falling three states short of the 38 needed for ratification.
What Would the Impact of the ERA Be?
The ERA has a two-year enactment clause. While American life is unlikely to change overnight, but its passage would be a significant historic victory for women’s and gender equality, and provide a permanent protection against laws that discriminate on the basis of gender.
Overtime, legal precedent would need to be established using the ERA as a piece of legislation. But the bedrock principle and protections the ERA offers would be enshrined in the United States’ most basic legal document, providing a permanent and powerful tool to achieve gender equality.
Doesn’t the Equal Protection Clause of the 14th Amendment Already Offer Protection in the Constitution?
While the Equal Protection Clause of the 14th Amendment has been interpreted to protect against discrimination on the basis of sex, that understanding of the Amendment is not assured or guaranteed.
The Fourteenth Amendment was passed in 1868 and it was not until over a century later, in the 1970s, that the U.S. Supreme Court began to apply the Equal Protection Clause to cases of sex discrimination. However, with its 1976 ruling in Craig v. Boren, the Court found that men and women could be treated differently under the law if such treatment served an “important governmental objective” without being in violation of the Equal Protection Clause of the 14th Amendment.
Additionally, laws like Title IX and the Equal Pay Act are not permanent protections for women and can be rescinded or replaced at any time.
With the ERA, there is no room for doubt that discrimination on the basis of sex has no place in the United States.
Is an Amendment Like the ERA Something Other Countries Have?
Yes! Among 193 UN member states, 85% have a provision in their constitution that specifically addresses gender equality and a further 115 that have a provision that prohibits discrimination on the basis of sex. Read more here.
What Is the ERA’s Current Status?
In 2017, Nevada became the first state in 45 years to pass the ERA, followed by Illinois in 2018 and Virginia in 2020!
Now that the necessary 38 states have ratified, Congress must eliminate the original deadline. A joint resolution was introduced in Congress currently to do just that. On 21 January, 2021, U.S. Senators Ben Cardin (D-Md.) and Lisa Murkowski (R-Alaska), and Congresswoman Jackie Speier (D-Calif.) and Congressman Tom Reed (R-N.Y.) announced the bipartisan legislation, which reads simply:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That notwithstanding any time limit contained in House Joint Resolution 208, 92nd Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution shall be valid to all intents and purposes as part of the Constitution whenever ratified by the legislatures of three-fourths of the several States.
This legislation, when passed, will eliminate one of the procedural barriers standing in the way of enshrining gender equality in the U.S. Constitution. You can take action to urge Congress to eliminate the deadline.
What Is Equality Now Doing to Help Ratify the ERA?
Equality Now is committed helping secure the ERA's passage through Congress. We are dedicated to providing resources and forums for members of the public to learn more about this critical gap in the U.S. Constitution, and how it can be remedied.
In addition, after t he three latest states to ratify the ERA - Virginia, Illinois, and Nevada - filed a case before the District Court of Columbia demanding the incorporation of the ERA into the Constitution, Equality Now joined other human rights organizations in filing an amicus brief in support of the plaintiffs.