Doesn’t the 14th Amendment Already Guarantee Women Equal Rights Under the Law?

“We ask justice, we ask equality, we ask that all civil and political rights that belong to the citizens of the United States be guaranteed to us and our daughters forever.” –SUSAN B. ANTHONY


The 14th Amendment Does Not Protect Women
Against Sex Discrimination

When the 14th Amendment passed in 1868, it was intended to give former slaves equal protection and voting rights under the law; it was not meant to protect women. In fact, it specified equality for male slaves, female slaves were excluded as were all women, regardless of race.

A year after the 14th amendment’s passage, Myra Bradwell tried to apply it to women’s rights. Bradwell, who graduated law school with honors and had passed the bar, challenged the Supreme Court of Illinois’ decision prohibiting her from practicing law in the state.

The Illinois Supreme Court had found Bradwell legally “disabled:” As a married woman she had no separate legal existence apart from her husband’s. She could neither own property nor enter into legal agreements.

The case went to the United States Supreme Court with Myra Bradwell arguing that Illinois violated the Fourteenth Amendment’s equal protection provision. The Supreme Court saw otherwise, ruling that the amendment did not require states to open the legal profession to women. One justice wrote: “The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother.”

Almost 100 years later the U.S. Supreme Court changed its tune. In the 1970s the country’s highest court began to apply the 14th Amendment’s equal protection clause to sex discrimination cases, finding it prohibited unequal treatment on the basis of gender. By 1976, the Supreme Court ruled that under the 14th amendment, men and women could be treated differently under the law only if it served an “important governmental objective.”

The end result, however, allows courts to interpret the ruling as they see fit, with absolutely no guarantees of consistency from case to case. Courts also evaluate cases of governmental sex discrimination under an “intermediate” standard of review, and not under “strict scrutiny,” the highest level of judicial review that applies to cases of race bias. Claims of sex discrimination typically require extremely persuasive evidence to stick.

So while the 14th Amendment at times has been interpreted to benefit women, it offers them no assurances. Women need consistency and the highest legal protection against discrimination. The Equal Rights Amendment would require courts to apply the highest level of strict judicial review.

As recently as 2010 Supreme Court Justice Antonin Scalia publicly stated that the 14th amendment does not prohibit against sex discrimination.

What does that tell you about the need for the ERA?