Tomorrow is Law Day, and we are celebrating the 14th Amendment, which provides everyone born or naturalized in the United States with “the equal protection of the laws.” The Constitution and its amendments further reference gender equality once. "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."
The 19th Amendment was passed by both houses of Congress and narrowly ratified by the required two thirds of the states when, in an 11th-hour vote, 24-year-old Rep. Harry Burns of Tennessee looked down at a letter he received from his mother and read, “Vote for suffrage.” Burns listened, he cast his vote, and Tennessee became the 36th of the 48 states to ratify the 19th Amendment.
Thanks to Harry Burns, his mom and the efforts of celebrated suffragists like Susan B. Anthony and Alice Paul, women could vote in the United States. For Burns, it took a letter from home to convince him what Alice Paul had said many times, “There is nothing complicated about ordinary equality.”
Gender rights activists turned next to universal equality with a campaign to get an equal rights amendment added to the Constitution, a proposal that still today generates impassioned debate. The Equal Rights Amendment would have created a constitutional guarantee that gender receive the same level of constitutional protections as other suspect classes like race, and religion.
U. S. Supreme Court Justice Ruth Bader Ginsburg said, “I would like my granddaughters, when they pick up the Constitution, to see that notion — that women and men are persons of equal stature — I’d like them to see that is a basic principle of our society.” In 1972, the ERA made it through Congress, however confronted with staunch opposition never received the required state ratifications for adoption into the Constitution.
Those who opposed the ERA weren't anti-equality, but subscribed to the idea that women, like men, are constitutionally protected under the Equal Protection Clause of the 14th Amendment and the myriad legislation that ensures gender equality, including the Equal Pay Act, Pregnancy Discrimination Act and Titles VII and IX of the Civil Rights Act of 1964.
The 14th Amendment ensures that all people enjoy equal protection of the law, but not all equal protection claims are created equal. For example, claims alleging discrimination based on race or religion receive the highest level of judicial scrutiny — strict scrutiny — while claims alleging discrimination based on gender receive intermediate scrutiny.
The lowest standard is the rational basis test, which only requires that a law serve a legitimate interest. Classes of people that fall under this test include mentally challenged people, LGBT people, children of illegal aliens, etc. LGBT advocacy groups have challenged the inclusion of the group under the rational basis test and pointed to the 2015 opinion Obergefell v. Hodges to indicate a shift to the strict scrutiny test. However, other legal analysts think that the opinion was a legal victory for same-sex couples without commenting on whether the group was under a new classification.
Some members of the bench, including the recently confirmed Justice Neil Gorsuch, subscribe to an originalist philosophy. This philosophy looks to the framers' intent of enacting the 14th Amendment, raising questions as to whether in 1868 the framers' intended the equal protection clause to apply to gender.
Today, the Supreme Court remains deeply divided on the interpretation of the Equal Protection Clause and gender. Gender-rights activist argue that with the ambiguity in the judiciary, and the fact that legislation protecting gender rights can be altered or repealed with any given political climate, it's imperative to take steps at codifying universal gender equality in the Constitution.
Whether you support the ERA and the broad application of the 14th Amendment, or subscribe to the originalist interpretation of the Constitution and allowing legislatures, not the courts, to control domestic policy, one thing can be certain: Alice Paul got it wrong so many years ago when she said, "There is nothing complicated about ordinary equality."
Please see the Law Day special edition in the advertising supplements in today’s paper, or visit http://lawday.utahbar.org, for more information on the 14th Amendment.
Nicholas Stiles is the statewide domestic violence program coordinator with the Utah State Courts.