Supreme Court Expands the Scope
The 19th Amendment can be interpreted far beyond its actual meaning
There has been little disagreement about the meaning of the 19th Amendment itself, but some scholars have argued the history surrounding the passage of the 19th Amendment should be applied to the interpretation of equal protection in the 14th. Theoretically, the 14th and 19th amendments, read together, serve to broaden the application of the 14th Amendment to gender-based rights not otherwise included in case law.
If you can’t get the slipper on the stepsister’s foot any other way, use a crowbar…or cut off her toes.
The language of the 19th Amendment is specific—“the right of citizens . . . to vote shall not be abridged . . . on account of sex”—but the context in which that debate about suffrage took place went beyond the franchise. Turns out, there were actual huge cultural issues involved in women's suffrage.
Opponents claimed, presciently, that giving women the vote would harm the institution of marriage. The family was the unit of governance in the public sphere, within which the man was the undisputed head. Coverture laws prohibiting married women from owning property of their own enforced that structure. Married women were already represented through their husbands. Opponents of suffrage argued they didn’t need an independent voice. Others rightfully argued it would, in effect, double every married man’s vote. These arguments succeeded in blocking women’s suffrage as part of the 14th Amendment, although it left behind the only constitutional reference to “male citizens.”
The success of the 19th Amendment represented a change in the way women were viewed in both the public and private spheres in a way that definitely influences how the equal protection of the laws should be interpreted.
The 14th Amendment raises a different challenge. Focused on African Americans, it’s language is inclusive —“all persons born or naturalized in the U.S.” are citizens, and no state shall deprive any “person” of the equal protection of the laws. The debate surrounding its passage was focused on the rights of the formerly enslaved, not the rights of women. However, by the 1970s, courts interpreted the 14th Amendment to include a ban against gender discrimination. In Frontiero v Richardson (1973), Justice Brennan reasoned in the minority’s opinion that gender discrimination was analogous to racial discrimination—both sex and race are immutable characteristics, independent of ability, as a result of which, both women and African Americans have suffered discriminatory treatment.
It is surely not unusual for courts to try to interpret the Constitution’s language through a political lens, particularly given its very general language. The words don’t interpret themselves, which gives judges tacit consent to interpret provisions, looking at the language together with their context and history. There should, obviously, be limits to this exercise; but past SCOTUS justices have twisted constitutional text to mean any number of things the justices want to see in the world.
In this case, the limitations in the Court’s deriving women’s civil and political rights from the general language of the 14th Amendment soon became clear. Comparing race and gender discrimination, Justice Powell, in Regents of the University of California v Bakke (1978) stated “the perception of racial classifications as inherently odious stems from a lengthy and tragic history that gender-based classifications do not share.” That analysis led the Court to use different tests to evaluate race and sex discrimination. While government acts discriminating on the basis of race are subject to searching inquiry—“strict scrutiny”—acts discriminating on the basis of gender are subject to “intermediate scrutiny.” Men and women even of the same race and similarly situated in life often make different choices and evaluating those differences has proved challenging, even when those differences can be pointed to as evidence of discrimination.
Some scholars have argued men and women aren’t similarly situated because of familial roles, pregnancy, or domestic violence. Reva Siegel of Yale Law School argued the general language of the 14th Amendment should be read alongside the debates surrounding the 19th. She asserted these two amendments combined address more than formal equality, applying to a range of practices contributing to women’s subordination. Her approach would require reexamining decades of sex discrimination law.
A second approach to address sex equality is to campaign for separate constitutional reform explicitly recognizing gender rights. We’re all familiar with the Equal Rights Amendment. Such an approach recognizes the United States Government never expressed a commitment to ensure gender equality beyond suffrage and advocates in favor of a constitutional amendment to correct this “failure”. This approach is championed by feminist groups, prominently including the National Organization for Women. The goal of such an amendment would be to reconfigure our nation’s commitment to eliminating gender discrimination beyond the framework of the existing law.
So then the question becomes…is that necessary? And how much does this really have to do with biological women? Or is it really mostly about men dressing as women and trying to compete against them in what we claim are women’s sports? Our subject isn’t the ERA. It’s the 19th Amendment which is just about biological women’s right to vote. Or is it?