By Claye Epperson

Introduction

Constitutionally, women have a big problem— they are not mentioned. Unfortunately, the Framers left them out of the nation’s founding document. The historical context of the contemporary Constitution makes it clear that white, propertied men were the only inhabitants who qualified as citizens. Almost a century later, women anticipated that the ratification of the 14th Amendment in 1868 would improve their lot. The first section guarantees 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 the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." ¹

CONSTITUTIONALLY, WOMEN HAVE A BIG PROBLEM- THEY ARE NOT MENTIONED...

Historically situated after the Civil War during Reconstruction, the 14th Amendment is clearly intended to expand the definition of citizenship. Presumably, all natural-born Americans, including women, were declared citizens by its ratification.

However, the second section of the 14th Amendment introduces a gendered word into the Constitution for the first time. That gendered word—“male”—is repeated three times and is invariably used with the ideas of citizenship: “male inhabitants of such a State,” “male citizens,” and again “male citizens.”² The second section emphasizes the importance of the historical context of the amendment: it was intended specifically and only to extend citizenship to male former slaves. Left out of the new definition, women were not made full citizens, as “the grand phrases of the first section of the fourteenth amendment would have, at best, qualified application for women.”³

Excluding an entire class of people from constitutional guarantees does not prevent that same class from encountering constitutional issues. Women certainly faced legal problems, such as discrimination, but if the Constitution is the sole source of legal relief, what were women supposed to do?

Video further explaining the 14th Amendment of the US Constitution.  All credit given to Khan Academy.

Collaboration Among LAUNCH: URS, History, and the TAMU School of Law

As part of a new interdisciplinary research program developed by Undergraduate Research, my faculty advisors (Dr. Katherine Unterman in Department of History, Dr. Randy Gordon at the School of Law) guided me as I searched for an answer to this question. I found this answer by synthesizing information from legal and historical sources. Legal materials supporting the research comprised case facts, oral arguments, briefs, opinions, and law journal articles; a variety of primary and secondary historical sources, such as autobiographies, monographs, and journal articles were used as well. Specifically, I focused the scope of my research on litigation involving sex-based discrimination because discrimination against sex is highly visible but was not protected under the 14th Amendment like other biological traits, including race. Combining these varied sources contributes a more complete and interdisciplinary answer not offered by either history or law alone: twentieth-century female litigators and activists brought cases to the Supreme Court, urging the Justices to consider sex as a class protected from discrimination under the equal protection clause of the 14th Amendment, and they eventually succeeded in establishing the intermediate scrutiny test.

Sex-Based Discrimination Litigation

Levels of Review

The intermediate scrutiny test is the middle component of a three-tiered hierarchy of tests that courts use to evaluate discrimination claims. The vast majority of discrimination cases are evaluated using the “rational basis test.” Governments, in order to function, divide people into categories all of the time. For example, most states categorize people as either under or over the age of twenty-one to regulate the sale and consumption of alcohol. Classifications such as these are necessary and pass the rational basis test because they are rationally related to a legitimate governmental interest, like public safety. As long as the government can demonstrate such a relationship, discriminatory laws pass the rational basis test.

However, some classifications are inherently suspect and are defined by immutable characteristics—things one cannot control about oneself—such as race, national origin, or alienage. When a law divides people based on a suspect classification, judges review the law under the strict scrutiny test. To survive strict scrutiny, the government must prove that the classification is necessary to achieving a compelling interest and that the law does so in the least injurious way possible. Generally, discriminations on the lines of a suspect class are invalidated. Brown v. Board of Education, the case that overruled the “separate but equal” doctrine that allowed for racial segregation of educational facilities, is a good example of how the strict scrutiny test was applied to nullify a suspect class discrimination. This is the most active form of judicial review, while the rational basis test is the least active.⁴

Intermediate scrutiny is somewhere in the middle: it is more strict than rational basis but is not as stringent as strict scrutiny. The test was not enunciated until 1976 in the Craig v. Boren decision.

GOVERNMENTS, IN ORDER TO FUNCTION, DIVIDE PEOPLE INTO CATEGORIES ALL THE TIME... (BUT) SOME CLASSIFICATIONS ARE INHERENTLY SUSPECT AND ARE DEFINED BY IMMUTABLE CHARACTERISTICS...

The Path to Intermediate Scrutiny

Although biological sex is an immutable trait, it is not considered a suspect class. In fact, for the majority of American history, sex-based discrimination claims were evaluated using the rational basis test. Muller v. Oregon, which reached the Supreme Court in 1908, clearly illustrates this judicial tradition.

Curt Muller owned a laundry in Portland, Oregon. On Labor Day in 1905, he forced one of his female employees to work for more than ten hours. This directly violated Oregon’s Ten-Hour Women’s Labor Law, ratified in 1903, that limited women’s work in certain industries, including laundries, to ten hours per day, six days per week. Louis Brandeis (who later became a Supreme Court Justice) argued the case on behalf of Oregon. With the help of progressive reformers Florence Kelley and Josephine Goldmark, Brandeis submitted 111 pages of information from reports on factory and medical commissions; expert testimony from doctors, academics, and factory and sanitation inspectors; and sociological data to demonstrate that labor and work environments have a direct relationship to health. Furthermore, his argument stressed that dangerous work had particularly negative effects for women, and by extension, society.

Thus, Brandeis reasoned, women deserved particular protections not afforded to men, like those in the Ten-Hour Law.5 The Court unanimously decided in favor of the law, reasoning that sexual differences “justify special legislation restricting or qualifying the conditions under which [women] should be permitted to toil.”⁶ Repeatedly, the Court employed similar reasoning: sex-based classifications were routinely upheld as protections for women.

Some of these “protections” were not as well disguised as others; outright sexism motivated numerous sex-based discriminations. For example, a bartender’s union in Detroit, Michigan was worried that when their brothers in arms returned from Europe, women would have taken all of their jobs. The union successfully lobbied the Michigan legislature, and in 1945, the state enacted a law that prohibited all women, except those who were the wives or daughters of male bar owners, from being bartenders. Attorney Anne Davidow represented a group of female bartenders who challenged the law under the equal protection clause in Goesaert v. Cleary. Davidow presented a radical argument to the Court, claiming that the law was an “unjust and unfair classification as to sex.”⁷ No one had ever argued before that the sexes were entitled to equal protection of the laws. Still, the Court upheld the law, reasoning that prohibiting women from bartending saved them from the dangerous revelry of bars and prevented potential moral decay.

Portrait of Supreme Court Justice Ruth Bader Ginsburg.

Social currents began to change in the late-Sixties and early-Seventies as second-wave feminism rushed across the country. Attorney Ruth Bader Ginsburg (who later became a Supreme Court Justice) used her position as General Counsel for the Women’s Rights Project at the American Civil Liberties Union to develop a long-term litigation strategy that aimed to have sex declared a suspect class. She strongly held the conviction that the protections afforded to women were not benign, but rather oppressive, arguing that what society perceived as a pedestal for women was actually a cage. Ginsburg incrementally established precedent by bringing case after case before the Supreme Court. In more than thirty-five Supreme Court cases, she protested assumptions about gender roles, arguing that those stereotypes disadvantage both men and women but ultimately prove most harmful to women. At first, she urged the Court to evaluate sex-based discrimination claims using strict scrutiny, as it did with racial discriminations. After realizing that convincing a majority of Justices to this position was unlikely, she tweaked her plea to be more conservative and suggested a middle tier that would be more rigorous than rational basis but less stringent than strict scrutiny. Ginsburg never settled for simply arguing that the sex-discriminatory statutes failed the rational basis test; these arguments always read as secondary in her briefs for the Court. Cases like Reed v. Reed (1971), Frontiero v. Richardson (1973), and Weinberger v. Wiesenfeld (1975), among many others, represented small, but crucial, steps in her litigation strategy of inching the Court closer and closer to enunciating a new test.⁸

SOME OF THESE "PROTECTIONS" WERE NOT AS WELL DISGUISED AS OTHERS; OUTRIGHT SEXISM MOTIVATED NUMEROUS SEX-BASED DISCRIMINATION...

Intermediate Scrutiny and Craig v. Boren

Ginsburg realized her goal of establishing a middle tier of review in 1976 through Craig v. Boren. The case, about an Oklahoma law that set a different age of majority for the purchase of beer for males and females, was neither special nor particularly convincing in nature. In fact, fraternity brothers, upset that they needed a middleman to buy beer for their parties, were the first people to formally complain about the law. The Supreme Court had heard Ginsburg’s argument about the detrimental nature of sex classifications enough that they were convinced there needed to be a test other than rational basis to evaluate these claims. However, the Court did not believe this new test needed to be as tough as strict scrutiny, so the Justices enunciated a middle tier, known as intermediate scrutiny. Specifically, sex classifications must be proven to “serve important governmental objectives and must be substantially related to achievement of those objectives.”⁹ It is not clear where on the scale between rational basis and strict scrutiny the intermediate test lies. It is clear, however, that the test only applies to sex-based discrimination claims under the equal protection clause, and that the Court does not think all discrimination claims about biological characteristics should be evaluated in the same way. Still, Ginsburg and other female litigators and activists throughout the twentieth century succeeded in providing women a means of legal relief for discrimination by convincing the Supreme Court to establish the intermediate scrutiny test.

THE COURT DOES NOT THINK... ALL DISCRIMINATION CLAIMS SHOULD BE EVALUATED THE SAME WAY...

Acknowledgments

I would like to thank all the people who have helped make my research project possible. First, thank you to Dr. Sarah M. Misemer, Associate Director for Undergraduate Research, and Dr. Susan Fortney at the TAMU School of Law for establishing this new research program. I am honored to be the pilot researcher. Additionally, I would like to thank my advisors, Dr. Katherine Unterman in the Department of History and Dr. Randy Gordon at the School of Law. Your support, encouragement, and guidance is immeasurably valuable.

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Claye Epperson '18

Claye is a Class of ’18 alumna from Lewisville, Texas who studied history during her time at Texas A&M. Claye participated in the 2017–2018 class of Undergraduate Research Scholars, and was the pilot researcher for a new program called Collaboration Among LAUNCH, History, and the Texas A&M School of Law. This interdisciplinary program allowed her to study both history and law under the guidance of Dr. Katherine Unterman (History) and Dr. Randy Gordon (TAMU School of Law). Claye is now a first year law student at the George Washington University Law School in the District of Columbia. She is interested in criminal law, as well as civil rights protections for women and children.

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References

1. U.S. Constitution, amend. XIV, § 1. Emphasis added.

2. U.S. Constitution, amend. XIV, § 2.

3. Davidson, Kenneth M., Ruth Bader Ginsburg and Herma Hill Kay. 1974. Texts, Cases and Materials on Sex-Based Discrimination. St. Paul: West Publishing Company, 2-3.

4. Jody Feder, Congressional Research Service, RL 30253, Sex Discrimination in the Supreme Court: Developments in the Law (2008), 1-2.

5. Louis D. Brandeis, Curt Muller, plaintiff in error, v. the State of Oregon: Brief for Defendant in Error, 1908.

6. Muller v. Oregon, 208 U.S. 412 (1908).

7. Anne Davidow, Goeseart v. Cleary: Brief for Appellants, 2-3, 1948s.

8. Reed v. Reed, 404 U.S. 71 (1971); Frontiero v. Richardson, 411 U.S. 677 (1973); Weinberger v. Wisenfeld, 420 U.S. 422 (1973).

9. Craig v. Boren, 429 U.S. 198 (1976).