Time Line: The Court and Gender
Women are not mentioned in the United States Constitution. There were no Founding Mothers; it probably would not have occurred to many members of the Constitutional Convention that women should have been represented, either among them or in the document they drafted. For the first 150 years of American history, women were treated in law as fundamentally different from, and inferior to, men. They did not even receive the right to vote until 1920. It was not until the 1830s that the Court heard a significant case about the rights of women, and the first female associate Justice was not seated until 1981--almost exactly 190 years after the Court was first convened. Women have fought with courage and perseverance to be equal before the law, and they have achieved much as a result of their struggles. Over the years, the Supreme Court both hampered and assisted women in their struggle for equal rights; and the battle before the Court is far from over.
| US Events |
| Gender Events |
| Date |
| President |
| Court |
| Marriage and Family |
| Employment and Careers |
| Civic and Social Rights |
| Reproduction and Privacy Rights |
| Sexual Harassment and Violence |
| Educational Policies |
| Morality and Sexual Ethics |
| Sexual Orientation and Other |
| Date |
· State Constitution
· Former slave Lucy Terry Prince wins Supreme Court case
| Wallingsford v. Allen
[1836] Decided by a vote of 6 to 0. The Court maintained that when a husband gives property to his estranged wife as court-ordered alimony, the woman, although still married, is able to use such property for her own needs. In this case, Wallingsford's wife received an enslaved woman, whom she freed. The husband sued to have the African-American woman (Allen) re-enslaved and returned to him as his rightful property. The Court decided in his wife's favor. |
| Stein v. Bowman
[1839] Decided by a vote 6 to 0. A wife cannot be forced to testify, or give evidence, against her husband. To allow this to happen would "break down or impair the great principles which protect the sanctities of husband and wife," destroying thereby "the best solace of human existence." The one exception is when the "husband commits an offense against the person of his wife." |
| Agricultural Bank of Mississippi v. Rice
[1846] Decided by a vote 6 to 0. A wife cannot be forced to testify, or give evidence, against her husband. To allow this to happen would "break down or impair the great principles which protect the sanctities of husband and wife," destroying thereby "the best solace of human existence." The one exception is when the "husband commits an offense against the person of his wife." |
| Bein v. Heath
[1848] Decided by a vote of 6 to 0. Under Louisiana law, a wife can sell or borrow money using her property as security, which she owns separate from her husband. In this case, the wife claimed that the money was then loaned to her husband, who became insolvent. Court maintained that the holder of the mortgage may seize the woman's separate property because she committed fraud in borrowing the money to be used for her husband, which is against the law of the state of Louisiana. |
| Barber v. Barber
[1858] Decided by a vote of 6 to 0. A woman legally separated from her husband has the right to sue her husband for the collection of legal alimony in courts of equity as long as a "next best friend" (usually a male but not always depending on the state) files the suit. The suit cannot be filed directly by her in a court of law but must be filed in a court of equity because as a feme covert she is "deemed to be under the protection of her husband," and can sue him, or anyone, only with his consent. She can file this suit even if she lives in a different state from her husband. |
| Drury v. Roster
[1864] Decided by a vote of 6 to 0. Court upholds a Minnesota decree declaring a mortgage given by a married woman to be null and void. Common law and statute do not allow, moreover, a married woman to authorize an agent to act for her with power of attorney. States that these "disabilities" are for the protection of married women because of their " dependent condition" and to "guard her against undue influence and restraint." |
| Voorhees v. Bonesteel
[1872] Court decided that a married woman may hold property in her name as an estate separate from her husband, and that his debts cannot be levied against property that she owns and manages separately from her husband. This decision upheld the growing trend of states to pass Married Women's Property Acts allowing for separate estates. |
| Lynde v. Lynde
[1900] Court held that divorce judgments from one state could be enforced in another state, with the enforcing state referring to local statutes and practices. This case involves a husband moving out of state to avoid responsibility for former family and the decision, based on the “full faith and credit” clause of the Constitution, involved no federal question. Gateway Links: |
| Thompson v. Thompson
[1900] Court upheld the ruling of the Supreme Court of the District of Columbia, which had ruled that a wife did not have the right to sue for damages for assault upon her person by her husband. Included is a lengthy dissenting opinion by Justices Harlan, Holmes, and Hughes. Gateway Links: |
| Serra v. Mortiga
[1907] Court struck down the decision of the territorial courts of the Philippines. The Filipino penal code under which this adultery case was reviewed did not meet the standard set by the U.S. Constitution and Bill of Rights. Gateway Links: |
| Bennett v. Bennett
[1908] Court held the discretionary powers of the Oklahoma Territory to act on behalf of a woman filing for divorce, to be awarded temporary alimony and attorney fees until a final divorce settlement. Involves the efforts of the husband to hide assets and ignore court decrees. Gateway Links: |
| Thompson v. Thompson
[1913] Court held that a wife's appeal against a Virginia State divorce decree cannot be made in the Supreme Court of the District of Columbia, based on the "full faith and credit" clause. At issue is the amount of money required, $5000 or more, to appeal under Virginia jurisdiction. Gateway Links: |
| Mackenzie v. Hare
[1915] Court upheld the ruling of the Supreme Court of the District of Columbia, which had ruled that a wife did not have the right to sue for damages for assault upon her person by her husband. Included is a lengthy dissenting opinion by Justices Harlan, Holmes, and Hughes. Gateway Links: |
| Chung Fook v. White
[1924] Court affirmed the lower court's rule that denied immigration into the nation of the alien wife of a native-born citizen of the United States, under the Immigration Act of 1917, which allowed for exemptions only to the wife of a person who was a naturalized citizen. The case reflects a heightened anti-Chinese sentiment as the Court critiques the law for a lack of clarity, but claims that the remedy is through state legislation, not the Supreme Court. Gateway Links: |
| Yarborough v.Yarborough
[1933] Sadie Yarborough, sixteen years of age, in 1930, through her grandfather R. D. Bowers, sues her father, W. A. Yarborough, in a South Carolina Court seeking financial support for her education. Yarbrough claims he paid the support dictated by the Georgia court when he divorced Sadie's mother in that state. The majority opinion, given by Louis Brandies, ruled for the father citing the full faith and credit defense (one state must honor the decisions of another, Article 4.1 U. S. Constitution). Those in dissent fought for an exception stating that each state has a right to determine the necessary protection and support of minors. |
| U.S. ex rel Knauff v. Shaughnessy
[1950] he Court, in an opinion by Sherman Minton, upheld the government's right, based on security concerns, to deny entry to a war bride without giving the reasons. The majority argued, despite the War Bride Act of 1945, Congress has the right to restrict entry, as it is a privilege not a right. Those in dissent argued that withholding "evidence of guilt ... is abhorrent to free men" and suggested the case against the war bride be aired. Gateway Links: |
| King v. Smith
[1968] Mrs. Sylvester Smith found herself denied Social Security payments from the Aid to Families With Dependent Children Program (AFDC) because of an on-going relationship with a man other than her four children's father. This disqualified her under Alabama's "substitute father" provision. The Court decided this rule violated federal requirements in that children cannot be denied benefits due to a parent's behavior. They granted Alabama's right to deal with actions it deemed "immoral," but added, state officials needed to find a different way. Gateway Links: |
| Glona v. American Guarantee
[1968] A domestic worker, residing in Texas, sought damages for the death of her illegitimate son, who was involved in an automobile accident. Louisiana law denied unmarried persons the right to file wrongful death suits unless, previous to the demise, they filed formal acknowledgment of paternity. William Douglas, writing for the majority, found the statue inconsistent in regards to who might file an action and the assertion it prevented the "sin" of illegitimacy baseless. For these reasons, the Court ruled the law violated the equal protection clause of the Fourteenth amendment. Those in dissent found the law aligned with states' right to dictate legal requirements for such suits. They claimed the majority based their decision on a biological foundation instead of a legal one. Gateway Links: |
| Reed v. Reed
(1971)
Decided by a vote of 7 to 0, two seats (to be occupied by Rehnquist and Powell) were vacant.
Conflict:
The court was following the rules as defined by state statute. The statute set forth which relatives could be executors and in what order they were to be appointed. First, a surviving spouse was to be appointed; if there was not a spouse, then children of the deceased were next in line, followed by the father or mother of the deceased. The statute stated that if there were two people at the same level--as in this case, a mother and a father--the man must be appointed. Opinion:
When a law makes a distinction based upon gender, that law must be viewed with suspicion. In this case, the distinction in the law had to have a "rational relationship" to the purpose of the law. Under the rational relationship test a law is presumed to be constitutional unless proven otherwise. When a state makes a law that differentiates among a class of people it has to have a rational reason to justify its choices. In this case, the Court stated that there was no reason to make a distinction among men and women. Idaho had no rational reason to automatically appoint Cecil instead of Sally. Context:
Before Reed (1971), courts routinely allowed discrimination based upon gender. Laws that limited women from working at night, or as a bartender were upheld. These laws were seen as valid exercises of a state's police powers. A state may make laws that affect the health, safety and welfare of the public. In Muller v. Oregon the Court said that a women's health was an "object of public interest" and thus, it was constitutional for Oregon to limit a woman's right to contract regarding the number of hours she worked per day even though such a restriction was not constitutional for men. Since Reed, various courts looked at such laws and applied the heightened scrutiny test with mixed results. Laws, such as women working as bartenders, were struck down as archaic and showed an out-dated view of women in the workforce. On the other hand, women were not allowed to be prison guards in an all-male facility that housed some sex offenders. There were cases in which women and men benefited from the Court's new outlook. Men had to be admitted to an all-female nursing school, and women were to be admitted to the all-male Virginia Military Institute (VMI). As an attorney, Ruth Bader Ginsburg argued the Reed case before the Supreme Court. In subsequent cases she argued that gender, like race, should be reviewed with the strict scrutiny test. As a Supreme Court Justice she wrote the opinion in the VMI case. Impact/Consequences:
There is still the ongoing concern about Title VII because of the opportunity to limit some jobs to women under a Bona Fide Occupation Qualification (BFOQ). This exception allows limitations of some jobs if there is BFOQ that limits consideration of all women for a specific job. However, a woman cannot be automatically denied job opportunities because of a preconceived notion by the employer that a job is too dangerous for women as a group, or that women as a group are too weak to perform a job. Quotes:
"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."
"Rail as they will about 'discrimination,' women are simply not endowed by nature with the same measures of single-minded ambition and the will to succeed in the fiercely competitive world of Western capitalism."
Questions to Ponder:
Can you think of any jobs that women as a group should be excluded from? How about jobs that men cannot do just because they are men? Should pregnant women be exempt from some job duties? Who gets to decide what jobs a pregnant woman can and can not do? Are there jobs that should be limited based upon one's sexual orientation? How about military service? Men are required to register for the draft at the age of 18. Should women also be required to register for the draft? What views on women's roles and men's roles in society reinforce your decisions about who should serve in the military? Selected Bibliography:
Maschke, Karen J. Litigation, Courts, and Women Workers. New York: Praeger, 1989. Gateway Links: |
| Miller v. Albright
[1998] Decided by a vote of 6 to 3. The Supreme Court decided that a child born outside the United States is not a United States citizen if only the Father is a U.S. citizen; if the mother is a U.S. citizen, than the child is a legal U.S. citizen. Gateway Links: |
| Nguyen v. INS
[2001] Decided by a vote of 5 to 4. The Supreme Court by a narrow vote affirmed two lower court decisions to legalize partial birth abortions. Gateway Links: |
| Muller v. OR
(1908)
Decided by vote of 9 to 0
Conflict:
The Constitutional issue in Muller relates to the right under the Fourteenth Amendment to liberty. The Fourteenth Amendment sets forth that states shall make no laws that limit a person's right to liberty. The Court held in Lochner v. New York that liberty included the right to contract for one's labor without government interference. Thus, New York could not make a law limiting the number of hours men are allowed to work each week. In addition to the Constitutional argument was the issue of women's ability to work. The State of Oregon argued that women were weaker than men and the State could legislate on their behalf to protect them against the harsher aspects of industrialism. In opposition, the employer argued that women, just like men, could negotiate their own terms of employment. Opinion:
Muller's argument centered on the right of individuals to contract for labor, without government interference, contending that if a worker did not want the job at the hours offered, he or she could refuse to work. He argued, too, that a state law that limited women but not men from freely making their contracts did not treat women equally to men. Muller argued that Oregon had overstepped its police power authority because the job at issue posed no danger to the public. On behalf of the State of Oregon Louis D. Brandeis (a future Supreme Court Justice) filed an extensive brief that mainly focused not on the Constitutionality of the state statute, but on the negative impact of strenuous industrial work on women as a group. He extended his idea about women's safety to the safety of the public. He asserted that because women were physically different than men (in that they were not as strong, they bore and raised children, and they were responsible for the home), they needed special treatment under the law. Oregon could legislate away a woman's right to contract for the benefit of the public good. The Court wholeheartedly agreed with Mr. Brandeis exclaiming that "healthy mothers were essential to vigorous offspring," and that the "physical well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race." The Court said that the welfare of women and the public were in danger of unscrupulous employers. The Court stated that it was a fact of common knowledge that women were dependent on men for their well-being and health. Women were not on equal footing with men when it came to negotiating the terms of their employment. Oregon had a right to take note of the differences between men and women and legislate to protect women. Context:
. When the lawyer Louis D. Brandeis presented his argument before the Court he used a creative strategy never really employed before, one that relied on a massive amount of social evidence gathered by the Consumers League, an organization that had pushed hard for protective laws for women. This data, consisting of nearly every medical and government report on the effect of industrial work on the health of women, also included 95 pages of quotations on the topic from experts all over the industrial world. The "Brandeis brief" in Muller became the model that reformers began to use in defending reform legislation aimed at protecting individuals and groups of people harmed by social conditions and practices. The most celebrated example of this model was in Brown v. Board of Education (1954), which struck down segregation in public schools. Impact/Consequences:
Muller served future arguments in creating minimum work hours and wages for men and women. But in doing so it influenced the political and social debate about what work was appropriate for women. Almost 40 years later in United States v. Darby Lumber Company (1941) the Court conceded that men would also benefit from laws that required minimum wages and limited maximum hours. It held that there were social harms in overworking and underpaying all employees. In this decision the right of employees, regardless of sex, to use the authority of law to limit employers power over them as workers was affirmed. In Muller, the Court noted that a woman was in a "class by herself." Although the Court carved out an exception for women regarding appropriate work conditions, it did not see the need to consider women as a "suspect class" when defining rights under the Fourteenth Amendment. (A suspect classification is discrimination based on what the Court has declared to be irrational and constitutionally invalid.) Under the Fourteenth Amendment, laws that impact people as a race are seen as "suspect" and states are required to show that there is a "compelling state interest" in creating the law and that the law was written in the least restrictive way possible to achieve that interest. Laws that discriminate on the basis of age, for example, are not suspect in and of themselves in the eyes of the Court. Arguments to the Court that women, too, should be viewed as a "suspect" class have not been persuasive. The Court has determined that the restrictive laws that treat women and men differently need not only pass a "heightened scrutiny" test. The test requires that the state must explain why the law serves an "important government objective" and that the law must be "substantially related" to those objectives. At first the Court saw hour limitations differently than requirements regarding minimum wages. In Adkins v. Children's Hospital (1923), a federal minimum wage for women was held unconstitutional. Adkins was overturned by West Coast Hotel Co. v. Parrish (1937), in which the Court held that a state law could set minimum wages for women and minors. Quotes:
"Women are the only exploited group in history to have been idealized into powerlessness."
"We submit that in view of the facts set forth and of legislative action extending over a period of more than sixty years in the leading countries of Europe, and in twenty in our states, it cannot be said that the Legislature of Oregon had no reasonable ground for believing that the public health, safety, or welfare did not require a legal limitation on women's work in manufacturing and mechanical establishments and laundries to ten hours in one day."
"Thus, the majority opinion did not really have to consider the individual working woman involved in the case or other American women in terms of either their working conditions or their performances on the job. Instead, the Court was encouraged to concentrate on female physical weaknesses compared to males and their procreative functions."
Questions to Ponder:
Should pregnant women receive extra time off from work after giving birth? What about fathers--should fathers also get to take off time from work for the new parenting responsibilities? Are laws that provide women the right to take off time from work for pregnancy treating women as a group of people who need protection or are these laws creating a level playing field by taking into consideration the reality of the fact that it is women who get pregnant? Consider that the Muller Court thought it was doing the right thing when it said women as a sex are different than men and because of that difference they should not have to work as hard as men. Isn't this basically the same thing as saying that because women as a sex are different than men, they are not allowed to work in the same jobs for the same pay as men? If the Fourteenth Amendment does not extend equal rights to women, should there be an Equal Rights Amendment (ERA) that does guarantee women equal rights? If an ERA were passed would the courts then interpret that Amendment like the Fourteenth Amendment and require that state laws treat women and men equally--just like the Fourteenth Amendment requires the courts to treat people of different races the same? Is there a valid reason to deny, not just one particular job to a woman candidate, but also to deny a job to women as a group? How about to limiting jobs to women because they are also mothers? How do ideas about women's proper place in society impact ideas about procreation? If women's health concerns are a matter of public concern as stated in Muller, than does the public have a right to say if a woman should carry a pregnancy to term? The Court later created rights for couples to use birth control and a woman the right to an abortion under the right to privacy--a right not specifically mentioned in the Constitution. Should states be able to put limits on these rights? What kind of limits? What do you think about the idea that protective legislation of the sort that limits working hours for women but not for men actually hurt many working-class women in the sense that they could not earn enough money to support themselves. In other words, did this gender-biased legislation harm working class women more than it helped them? Selected Bibliography: Freison, Jennifer and Ronald K. L. Collins. "Looking Back on Muller v. Oregon." American Bar Association Journal 69 (March-April 1983): 294-98, 472-77. Kessler-Harris, Alice. Out to Work: A History of Wage-Earning Women in the United States. New York: Oxford University Press, 1982. McCall, Leslie. Complex Inequality: Gender, Race and Class in the New Economy. New York: Routledge, 2001. Gateway Links: |
| Quong Wing v. Kirkendall
[1912] Court held judgment of the Supreme Court of Montana, which argued that variations of taxation based on gender did not deprive plaintiff of 14th Amendment rights, but protected women in their effort to earn a living. The dissenting opinion reflects race attitudes of the era and an inconsistent tax code. Gateway Links: |
| Miller v. Wilson
[1915] Court affirmed the California State act prohibiting employers, in certain professions, from requiring women to work more than 8 hours in a 24-hour period or 48 hours in a week. The act excluded many classes of employment: agricultural, canning industries, stenographers, clerks, and domestic servants. The criteria for classification are based on the nature of the employer's business, not the "character" of the employees' work. Gateway Links: |
| Adkins v. Children's Hospital
[1923] Court held that wage regulation was unconstitutional, in a lengthy opinion that outlines the development of work-related legislation and the role of women in the workforce. The decision limits the Police Power of the state to regulate maximum work hours but not wages and reflects upon the "revolutionary changes" brought about by the passing of the 19th Amendment. Two dissenting opinions are included. Gateway Links: |
| Radice v. People of NY
[1924] Court held conviction of restaurant owner employing women between the hours of 10 PM and 6AM in violation of New York State Act of 1917. The law is an extension of the Police Power of the Constitution and protects women from the "injurious consequences" of which men are not as susceptible. Gateway Links: |
| West Coast Hotel v. Parish
[1937] The Court, in a majority opinion by Charles Hughes, ruled that the freedom to contract is subject to legislative restraints in its decision to uphold a Washington law guaranteeing women and children a minimum wage. Their action overturned the rule that such restraint violates the Fourteenth Amendment's due process guarantee (Lochner v. New York [1905] and Adkins v. Children's Hospital [1923]). It also found that women; based on their physical stature, maternal duties, and unequal bargaining position required state protection. The majority countered George Sutherland's dissent that women were "legally as capable of contracting for themselves as men," by arguing that laws need not encompass all manifestations of the same wrong. Some women's group opposed the decision stating that the special protection created employment barriers. Gateway Links: |
| Goesaert v. Cleary
[1948] Michigan excluded women from obtaining a necessary license to bartend in cities where the population exceeded 50,000 unless they were the wife or daughter of a male owner. Citing the equal protection clause of the Fourteenth Amendment, some sought to overturn the law. Felix Frankfurter, writing for the majority, stated that the legislature's apparent desire to keep women safe in a morally challenged environment provided a reasonable basis for the distinction. The dissenting Court members argued the regulation prohibited female owners, even if a male were present, from operating their establishments and thereby violated the Fourteenth amendment. Gateway Links: |
| Phillips v. Martin Marietta
[1971] Ida Phillips, under Title VII of the 1964 Civil Rights, charged Martin Marietta Corporation with sexual discrimination when it declined her job application because of her pre-school age children. Men did not experience the same condition. The Court ruled that, although an exception existed for such a condition, the Appeals Court erred when it granted a summary judgment and dismissed the case without trial. They remanded it back for trial. In a concurring opinion Thurgood Marshall argued the exception base on family duties reinforced stereotypes Congress sought to preclude when considering job qualifications. Gateway Links: |
| U. of PA v. EEOC
[1990] Decided by a vote of 9 to 0. The Supreme Court forced the University of Pennsylvania to release tenure-file related documents. This decision was necessary after a female associate professor filed a charge with the EEOC alleging discrimination. Gateway Links: |
| International Union v. Johnson Controls
[1991] Decided by a vote of 9 to 0. The Supreme Court decided that it is okay for women to work in jobs that are not safe for human fetuses. Gateway Links: |
| Minor v. Happersett
(1874)
Decided by a vote of 9 to 0.
Conflict:
But Virginia Minor was no ordinary woman and neither was her husband, Francis, an ordinary man. She was the president of the Missouri National Woman Suffrage Association, and Francis Minor had laid out at its annual convention in 1869 the legal rationale for claiming that the Fourteenth Amendment guaranteed women the right to vote. Together they were a formidable team. He wrote, moreover, most of the legal briefs presented to the state and federal courts in this case. The challenge Virginia Minor threw at the Court began by asserting that "there can be no half-way citizenship" under the Constitution. She argued that the disfranchisement of women inflicted punishment on them without a judicial trial, and was a violation of the constitutional guarantee of due process. She also claimed that voting was protected under the First Amendment as a form of free expression, under the Thirteenth Amendment because the disfranchisement of citizens was a form of involuntary servitude, and under the Fourteenth Amendment because voting in national elections was a privilege and immunity of national citizenship rather than simply a privilege of state citizenship. Opinion:
Chief Justice Morrison Waite wrote the unanimous opinion of the Court. He noted that voting was not a right or privilege of the Constitution. He asserted that the framers of the Constitution had never intended to grant suffrage to women, despite the fact that they were indeed citizens and persons in the eyes of the law. Citizenship, in the Court's opinion, did not carry with it the right of suffrage. It was the Court's responsibility, he stated, "... to decide what the law is, not to declare what it should be." He maintained that Virginia Minor was indeed a citizen of the United States and the state of Missouri, but state law did not allow her to vote. States could, without violating the federal Constitution, deny women the right to vote because neither the original Constitution nor the Fourteenth Amendment required states to permit women to vote. In other words, the right to vote was not a federal privilege protected by the Constitution. It was a privilege to be granted by the states. Waite also pointed out, that no new state admitted to the Union had ever conferred the right of suffrage to women. The Court further stated that if the privileges and immunities clause of the Fourteenth Amendment gave all citizens the vote, there would have been no need for the Fifteenth Amendment, which allowed a subset of citizens (previously enslaved African-American men) to vote. Because no adjustment to the Fifteenth Amendment specifically stated that women could vote, it was constitutional for states to deny women the vote. Context:
Anthony's case was never taken to the Supreme Court. Because her counsel had paid her bail to keep her out of jail, she was not imprisoned and could not ask the Supreme Court to hear her case under a writ of habeas corpus. Also, because the judge in the case did not enforce his judgment, she had no claim to appeal a meaningless verdict. States could and did limit the right to vote based upon a variety of conditions over time including color, literacy, wealth, age, and sex. The Fifteenth Amendment set forth that states could not deny citizens the right to vote based on race, color, or previous condition of servitude. This amendment was designed to enable men to vote who had previously been enslaved, but because it did not include gender or sex the Amendment could not easily be used to support suffrage for women. Women in New Jersey had been given the right to vote in 1776 in the state constitution. In 1807 the state law was rewritten to only allow tax-paying, white male citizens to vote. In the Territory of Wyoming women could vote, and when Wyoming became a state in 1890 the grant of suffrage to women was maintained. By 1900, a handful of states, e.g., Utah, Idaho, and Colorado, gave women the vote, but it remained a state-by-state issue until the passage of the Nineteenth Amendment (1920). Impact/Consequences:
The defeat of Virginia Minor in 1872, along with the arrest of Susan B. Anthony in that same year, marked a turning point in the women's movement. Thereafter, women began to look less to the courts for redress under the Fourteenth and Fifteenth Amendments and more to the political struggle for a suffrage amendment to the Constitution. This produced a movement that placed most of its energy into gaining the vote while backing away from many other reforms aimed at full citizenship for women, such as equal pay, jury duty, inclusion in professions and occupations and schools, domicile rights, divorce reform, access to birth control and abortion, child custody, and working conditions. These issues did not emerge again as priorities until the 1960s. Quotes:
"...we declare our faith in the principles of self-government; our full equality with man in natural rights; that woman was made first for her own happiness, with the absolute right to herself--to all opportunities and advantages life affords for her complete development; and we deny that dogma for centuries, incorporated in the codes of all nations--that women was made for man--her best interests ... to be sacrificed to his will." --Declaration of Rights, 1876 "Sir, when the women ... love to be jostled ... [in] trade and business; when they love the treachery and the turmoil of politics; when they love the ... blood of battle better than they love the affections ... of home and family, then it will be time to talk about ... women voters." --George Williams, Oregon Republican Senator, 1866. Female Suffrage "would weaken and finally break up and destroy the Christian family. The social unit is the family, not the individual; and the greatest danger to American society is, that we are rapidly becoming a nation of isolated individuals, without family ties or affections. The family has already been much weakened, and is fast disappearing.... We do not believe women ... fit to have their own head ... Revelation asserts, a and universal experience proves that the man is the head of the woman, and that the woman is for the man, not the man for the woman." --Orestes Bronson, 1873. Are Women People Questions to Ponder:
What other requirements exist today that limit the right to vote? Should the legislative or judicial branch of the federal government decide who gets to vote? If it had been left to the states to allow women to vote, is it possible that women in some states would be able to vote for President while women in other states would not be able to vote. What would be the consequence of this? Do you think that it mattered that women won the right to vote? Present an argument that says that suffrage for women has not advanced equality for them. And why do you think so many women opposed the Equal Rights Amendment? Some women opposed giving women the right to vote because they thought it would weaken their power and authority as women. Does this make any sense? Present an argument that supports this position. Selected Bibliography:
Graham, Sara Hunter. Woman Suffrage and the New Democracy (1996) Lunardini, Ghristine A. From Equal Suffrage to Equal Rights: Alice Paul and the National Woman's Party, 1910-1929 (1986) Mathews, Jean. Woman's Struggle for Equality: The First Phase, 1828-1876 (1997) Smith-Rosenberg, Carroll. Disorderly Conduct: Visions of Gender Gateway Links: |
| Bunting v. OR
[1917] Court held indictment of mill owner who required workers to work more than 10 hours without overtime pay, in violation of Oregon State act. At issue was the question of whether or not the law addressed health protection or wage regulation. Gateway Links: |
| Leser v. Garnett
[1922] Civil Court rules that the Nineteenth Amendment was duly ratified and is part of the Constitution. Gateway Links: |
| Breedlove v. Sutles
[1937] A twenty-eight year old white male challenged the legality of a $1.00 poll tax collected annually from all men between the ages of 21 to 60 and women who registered to vote. The exempted the blind. He claimed it prevented him from voting which violated the equal protection clause of the Fourteenth Amendment and the exclusion of women equaled discrimination as defined by the Nineteenth Amendment. Pierce Butler, for the majority stated the first challenge failed because "equal protection does not require absolute equality." The second challenges did not hold because "the burdens necessarily borne by them [women] for the preservation of the race," allows the state to "exempt them from the poll tax." In addition, Georgia declared the husband as the legal head of the household and the financial hardship of paying the tax would have fallen to him. Gateway Links: |
| Glasser v. U.S.
[1942] Glasser, a federal prosecutor based in Illinois, convicted of accepting bribes in regards to liquor law violations, sought a new trial, among other reasons, because women were excluded from the grand jury pool in violation of state law. In the majority opinion, given by Frank Murphy, the Court dismissed the defense because the law went into effect shortly before the trial and did not provide the state enough time to generate a list of women from which to chose. However, based on other challenges, Glasser did receive an order for a new trial. Gateway Links: |
| Hoyt v. FL
[1961] Gwendolyn Hoyt killed her husband during a domestic argument and was convicted of second-degree murder. She asked the verdict be set aside because Florida's policy of only requiring jury duty for women who register resulted in an all male jury, violating the Fourteenth Amendment. The Court rejected her claim. In an opinion written by John Harlan II, the Court stated that Florida did not arbitrarily reject women. They said no one is entitled to a jury "tailored" to the specifics of their case, and the women's exemption is based on the reasonable assumption that as "the center of home and family life," other duties may preclude their service. Gateway Links: |
| Alexander v. LA
[1972] An African-American sought to have his rape conviction voided. He alleged the grand jury selection procedure was racially bias and this led to an all white panel. He also challenged the exemption of women from it. The Court, in an opinion by delivered by Byron White, granted the request, citing the attachment of racial indicators to the grand jury selection form as compromising the neutrality necessary for picking jurors. They did not accept his challenge to the exemption of women since they granted him a new trial based on other criteria. Gateway Links: |
| Poe v. Ullman
[1961] A challenge to a Connecticut statue that prohibited the use of contraceptive devices and advice on how to use them was past over by the court. The majority declined because only the threat of prosecution was made. The Court noted the threat had only been manifested once since the 1879 law's passage. In an opinion announced by Felix Frankfurter, the Justices stated they "cannot be umpires to debates concerning harmless empty shadows." Gateway Links: |
| Griswold v. CT
[1965] Employees of the Planned Parenthood League in Connecticut are convicted and fined for violating the 1879 state statues barring the distribution and discussion of how to use contraceptive devices. The Court reversed the convictions citing implied or natural rights of privacy in the First, Second, Third, Fourth, Ninth, and Fourteenth Amendments. In separate dissents, Hugo Black and Potter Stewart, argued that no such privacy rights exist in the Constitution and the Court's reasoning would inspire judges to substitute their views concerning rationality and public good for the legislature's, leading to an unconstitutional expansion of judicial power . The verdict enumerated "zones of privacy" that became the basis for other court decisions such as Roe v Wade. Gateway Links: |
| U.S. v. Vuitch
[1971] Milan Vuitch challenged the District of Columbia's abortion statue because it allowed prosecutors to assumed all abortions illegal and set an ill-defined "health" standard. The majority, in an opinion by Hugo Black, found that prosecutors misinterpreted the law and the burden of proof remained with them. After a study of Congressional records and precedents, which gave them no leads on interpreting the "health," the justices allowed for mental or physical reasons to justify an abortion. Byron White concurred, adding that the law creates a limited class of acceptable abortions. William Douglas, in a limited dissent, believed the term "health" to vague. He reasoned that doctors and juries might draw the line in different places, leaving the former a felon for what he or she believed a proper diagnosis. In his dissent, he noted a Texas case, Roe v Wade. Gateway Links: |
| Roe v. Wade
(1973)
Decided by a vote of 7 to 2.
Battle
By the time the case reached the U. S. Supreme Court, various organizations and individuals joined in support or in opposition to the Texas law, which made it a crime for a woman to have an abortion and for a doctor to assist in an abortion. Among the supporters of the Texas law were six state attorney generals and several right-to-life associations--principally Roman Catholic-sponsored advocacy groups. Those who joined the case in support of abortion included the American College of Obstetricians and Gynecologists, the Planned Parenthood Federation of America, the American Association of University Women, and the National Organization for Women. Context
By grounding Roe in the right-to-privacy precedent, the Court avoided saying that abortion laws discriminated against women on the basis of their gender. In other words, women were not granted the right to have an abortion as a matter of reproductive freedom or gender equality. They were granted the right to an abortion as a matter of privacy. And when the Court talks about abortion laws violating the right to privacy, it means the privacy that exists between a doctor (usually male) and a female patient. By not seeing the issue as one of gender discrimination--in the sense that abortion laws affect women fundamentally and not men, the Court opened the door to challenges based on the belief that life begins at the moment of conception. But it also avoided opening the door of gender discrimination, which is a much more proactive stance with the potential of putting the government in the business of protecting abortions and even helping women to obtain them. Opinion
Blackmun based his opinion on a woman's right to privacy, using a precedent established in an earlier case (Grisswold v. Connecticut, 1965). In Grisswold, the Court held that state laws restricting the right to use contraceptives violated a person's constitutional right to privacy. For the Court, the decision to seek an abortion was a personal matter of great intimacy between a woman and her doctor, and government had no right to intervene in such personal choices. Impact/Consequences
Those who support Roe argue that the legal recognition of the rights of women to control their reproductive lives has allowed them greater freedom to participate in American society at large. Justice Blackmun called it "a step that had to be taken as we go down the road toward the full emancipation of women." Those who oppose Roe contend that it makes legal what amounts to the killing of innocent human beings. In the years since Roe, a well-organized antiabortion movement went on the attack to try to limit abortion at the state and federal level through legislation. Representative Henry Hyde, a Republican from Illinois, persuaded Congress to pass the Hyde Amendment in 1976, which prohibited the use of federal Medicaid funds for abortion. The Supreme Court upheld this act in Maher v. Roe (1977). Also, the Court upheld by a 6 to 3 majority a Connecticut law that disallowed the use of Medicaid funds for most abortions. This was followed in 1981 by a ruling in which the Court voted 5 to 4 to bar all federal funding for abortions except in the case of rape, incest, or to protect the life of the mother. In Webster v. Reproductive Health Services (1989), the Court upheld by a 5 to 4 vote a Missouri law that prohibited the use of public facilities or public workers to perform abortions. On the other hand, the Court struck down state laws that placed an undue burden on women seeking abortions under Roe while upholding state laws that limited the activities of antiabortion protestors outside abortion clinics (Hill v. Colorado-1999) In Planned Parenthood v. Casey (1992), four Justices (Rehnquist, White, Scalia, and Thomas) voted to overturn Roe, but Justice Sandra Day O'Connor joined with Justices Kennedy, Souter, Blackmun, and Stevens to reaffirm the "essential holding" of Roe. This is where the matter stands today. Most Court observers believe, however, that President George W. Bush's appointment of two new justices to fill the vacancies caused by the resignation of Justice Sandra Day O'Connor and the death of Chief Justice William Rehnquist may result in a Court willing to overturn Roe or to limit significantly its application. Quotes
"Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe." Justice William Rehnquist, in his dissenting opinion on Roe v. Wade, 1973 "Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned." Justice O'Connor', Planned Parenthood v. Casey, 1992. "We continue to believe that Roe was wrongly decided and should be overruled."--John G. Roberts, in a Supreme Court brief he co-wrote for the first Bush administration while working for U. S. Solicitor General, 1991 "Roe v. Wade is the settled law of the land. It's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey."--John G. Roberts, during the confirmation hearing, when asked for his own views on Roe v. Wade, 2005 Questions to Ponder:
The Court based its opinion in support of abortion on a woman's right to privacy protections in the Constitution. But nowhere in the Constitution is the right to privacy mentioned specifically. So how could the Court use this as the basis of its decision? Are there times when the government has the right to interfere in the privacy of citizens? On what grounds can this happen? Some opponents of abortion worry that it leaves the door open for eugenics and the selective breeding of human beings. What do you think about this? How would you oppose or support this contention. Supreme Court Justice Thurgood Marshall asked the defense lawyers in Roe a simple question that they had difficulty answering: When does human life begin? How would you answer this question? Some would argue that a woman's right to an abortion is an issue of civil rights? How do you think this might be argued? Do minors have the right to choose an abortion? If yes, why? And are there any age restrictions that should be enforced? Do you think a young girl should be forced to get the permission of her parents before having an abortion? Explain your answer. Selected Bibliography
Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994) Gold, Rebecca Benson. Abortion and Women's Health: A Turning Point for America?. New York: The Alan Guttmacher Institute. 1990. Hoff, Joan. Law Gender & Justice: A Legal Historyof U.S. Women. New York: New York University Press, 1991. Hull, N. E. H., and Williamjames Hoffer and Peter Charles Hoffer, eds. The Abortion Rights Controversy in America: A Legal Reader. (2004) Richardson, Laurel. The Dynamics of Sex and Gender: A Sociological Perspective (1988) Rhodes, Deborah. Speaking of Sex: The Denial of Gender Inequality (1997) Roland, Debran. The Boundaries of Her Body: The Troubling History of Women's Rights in America (2004) The Oxford Companion to the Supreme Court of the United States. editor Kermit L. Hall. Oxford: Oxford University Press, Inc., 2005. Wood, Douglas S. "Who is Jane Roe?" CNN Interactive. 1998. Gateway Links: |
| MI v. Lucas
[1991] Decided by a vote of 7 to 2. The Supreme Court decided it was okay to let a criminal defendant introduce an alleged rape victim's past sexual conduct. There is a statutory exception included in Michigan's "rape shield" statute. This exception permits a defendant to introduce his own sexual history with his accuser. Gateway Links: |
| Williams v. U.S.
[1946] Carl B. Williams, a married white male, engaged in consensual sex with a seventeen year old Native American woman on a reservation in Arizona. He was convicted of rape in an Arizona court that set the age of consent at eighteen. The Court reversed it, stating that federal law, which sets the age of consent at sixteen, took precedent because the location of the act fell under its jurisdiction. Gateway Links: |
| Humphrey v. Cady
[1972] An individual was convicted in Wisconsin of contributing to the delinquency of a minor. This offense carried a one-year sentence. The state Court found the motivation for the crime to be the desire for sexual excitement, which allowed an addition five years confinement for treatment under the Wisconsin Sex Crime Act. The Court agreed with the petitioner that the Act was not exclusive of the Mental Health Act that allowed for a jury trial before commitment. In an unanimous opinion, given by Thurgood Marshall, the Court ordered the petitioner's Fourteenth Amendment claims for equal protection to be heard. Gateway Links: |
| Wainwright v. Stone
[1973] A man was convicted of having sex "per os and per anum." The conviction was overturned for unconstitutional vagueness. The Court reinstated the conviction arguing that when a previous court decision delineates the contents of a law, it is to be treated as if that decision was written into the statue. Therefore, the defendant had proper warning that his behavior was illegal. Gateway Links: |
| Meritor v. Vinson
(1986)
Decided by a vote of 9 to 0.
Conflict:
Vinson claimed that during her career with the bank, Taylor had sexually harassed her. She testified that she feared she would be fired unless she engaged in a sexual relationship with him. She claimed that although there were times she voluntarily engaged in sex, there were also times when Taylor raped her. She claimed that Taylor groped her in front of other employees, followed her into the women's restroom, and exposed himself to her. Taylor said that none of this ever happened. The Bank, moreover, claimed that it was not liable in any case because the company did not know about the alleged abuse and because Vinson did not make use of the grievance procedures available to her over the years of alleged abuse. Opinion:
The guidelines state that sexual harassment could fall within two categories--"quid pro quo" or hostile work environment. "Quid pro quo" occurs when sexual advances, verbal and/or physical, are tied to a person's ability, for example, to keep their job, or be promoted. A hostile work environment is when the abuse is so severe that it affects the ability of an employee to do her job (even when it is not tied to economic gain or loss). The Court explained that sexual harassment had to be "sufficiently severe or pervasive ‘to alter the conditions of [the victim's] employment and create an abusive working environment." The facts in this case, if proven at trial, fell within the definition of sexual harassment, and thus the case should be remanded, or send back, to a lower court for trial. In determining the facts of a case, the Court noted that the "totality of circumstances" must be reviewed, including the victim's "provocative speech or dress." Such information was not to be automatically dismissed as irrelevant at the trial court level. At the same time, the Court stated that the fact that the victim "voluntarily" participated in sexual activity with her employer was not the issue. The issue that should be addressed was whether the employer's actions were "unwelcome." The Court made no ruling on the facts of the case but instead remanded, or sent back the case, to the lower court on two grounds: firstly, the opinion that no actionable harassment occurred because the sexual action was voluntary had avoided the crucial issue of whether or not it was "unwelcome;" and secondly, the mere existence of a grievance procedure does not necessarily protect the employer from the responsibility for ensuring a work environment free of sexual harassment. Although the majority opinion declined to say that an employer was liable in all circumstances for the actions of a supervisor, a strong concurring opinion said that the employer was absolutely responsible for the conduct of its supervisors. Context:
Impact/Consequences:
Because of Meritor and the cases mentioned above, it is now possible to bring a class action suit on behalf of all women within the company against an employer. Companies such as Mitsubishi Motor Manufacturing of America, Ford Motor Company, and Morgan-Stanley have set aside millions of dollars to handle the settlement of such cases. In once case, the Texas-based national Rent-A-Center settled a sexual harassment claim of 5,000 women employees for $7 million. Quotes:
"It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...."
"Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or a woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets."
"For female employee, what's the difference between being repeatedly groped by a low-level manager and by a top executive? About $100,000"
Questions to Ponder:
Does protecting women from harassment create equity or equality in the workforce? Does what a woman wears to work negate her right to work without being sexually harassed? Should what a woman wears to work be taken into consideration when she asserts that she was sexually harassed? Should Title VII extend to discrimination based upon sexual orientation? What if a person is thought to be gay (and is not) and harassed, or passed-up for a promotion, or fired? How have women's/men's roles in society impacted their roles at work? How do your concepts about power and authority inform your ideas about how work relationships should be conducted? Selected Bibliography:
Eisenstein, Zillah. The Female Body and the Law. Berkeley, Ca., University of California Press, 1988. Gregory, Raymond F. Unwelcome and Unlawful: Sexual Harassment in the American Workplace. Ithaca: Cornell University Press (2004). Gateway Links: |
| Gebser v. Lago Vista Schools
[1998] Decided by a vote of 5 to 4. The Supreme Court decided that a high school student, that had a sexual relationship with one of her teachers, could not sue the school board. The school board cannot be sued unless it can be proved that they knew about the relationship and did nothing to prevent or curtail the activity. Gateway Links: |
| U.S. v. VA
(1996)
Decided by a 7 to 1 vote.
Conflict:
The question before the Court was whether a state funded college could accept only male applicants without violating the Equal Protection Clause of the Fourteenth Amendment. The Court held that it could not. Justice Ruth Bader Ginsburg in this case wrote the decision, with a 7 to 1 majority. Chief Justice William H. Rehnquist concurred. Justice Antonin Scalia dissented, and Justice Clarence Thomas did not participate in this decision because his son attended VMI. Opinion:
Virginia argued that VMI's male-only policy was to further the State's goal in providing diversity within education opportunities within the State as all other state-supported colleges or universities were coeducational. The State's argument was not accepted as genuine or valid. There was no evidence prior to the institution of the case that in any way supported the notion that VMI was created or maintained to create diversity within the education system of the State of Virginia. The Court reviewed VMI's mission statement written before the case was started. VMI stated that its purpose was "to produce educated and honorable men, prepared for the varied work of civil life, imbued with the love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready as citizen-soldiers to defend their country in time of national peril." Virginia also argued that VMI's training was specifically geared to men. Its program hinged on the "adversative" method, which included "physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values." Its entering class was exposed to the "rat line" wherein students were ridiculed and insulted. Virginia argued that admitting women would fundamentally change these procedures. In addition, it argued that women would not benefit from these types of educational requirements; that women were not suited to this type of educational training. Although the Court admitted that there might have to be some modification to VMI's policies relating to the privacy for women in housing and the requirements for physical training, these modifications would not fundamentally change VMI's purpose in creating "citizen-soldiers." The idea promulgated by the State that the academy offered a "unique" educational experience was accepted by the Court, which helped the Court to decide that no other institution in the state could match VMI's academic, civil, and military standards. The Court also agreed that VMI molded its students into "citizen-soldiers," and leaders who could serve their county in either civil or military realms. The Court disagreed, however, that only men were able to achieve the benefits that VMI had to offer. When VMI refused to consider any woman, even when she could perform to VMI's standards, it denied women the equal protection demanded under the Fourteenth Amendment. VMI had tried maintaining its all male enrollment by offering a separate education facility for women, Virginia Women's Institute for Leadership (VWIL), at an area college for women (Mary Baldwin) that substantially duplicated, according to Virginia, the VMI program. The Court held that the alternative institution proposed did not in any way match the rigorous educational and physical standards of VMI. In addition, VWIL did not have the same financial backing, academic offerings, and prestigious reputation of VMI. The proffered female school did not fix the unconstitutional discriminatory policy of VMI. Context:
Impact/Consequences:
Quotes:
"[T] he tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decided to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law."
"...Class unity and the "brother rat" spirit that result from shared experiences in a stern and challenging environment."
"A Gentlemen ... does not discuss family affairs in public or with acquaintances ... does not go to a lady's house if he is affected by alcohol ... he is temperate in the use of alcohol ... never discusses the merits or demerits of a lady ... does not display his wealth, money or possessions ... does not slap strangers on the back nor so much as lay a finger on a lady...."
"Sex classifications may be used to compensate women ‘for particular economic disabilities [they have] suffered,' to ‘promote equal employment opportunity,' to advance full development of the talent and capacities of our Nation's people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women."
Questions to Ponder:
Should the Court's analysis for gender not be heightened scrutiny, but strict scrutiny just like racial classifications? Would it be permissible for VMI to limit its enrollment to only white males? How is that different than allowing women to apply? Should women be required to register for possible military service (the draft) just like men? Should they be allowed to participate in combat on equal footing to men? Is it relevant that VMI might have to change some of its educational processes to admit more women in the future? Does creating separate barracks for women infringe upon VMI's goals for its students? Why are separate barracks okay but not separate classrooms? If VMI could have maintained its all-male policy by becoming a private institution why didn't it? Does the fact that only 15 percent of VMI students choose a military career impact your views about the stated purpose of VMI? How do you feel about the fact that many African-American alumni of historically black colleges do not want to see their alma maters opened to white students? How might they justify this type of separate but equal stance? Selected Bibliography:
Davis, Thomas W. A Crowd of Honorable Youths: Historical Essays on the First 150 Years of the Virginia Military Institute. Virginia Military Institute (1988). Strum, Philippa. Women in the Barracks: The VMI Case and Equal Rights. Lawrence, Kan.: University Press of Kansas (2002). Gateway Links: |
| Reynolds v. U.S.
(1878)
Decided by a vote of 8 to 1.
Conflict:
Although there were several technical irregularities in the trial court proceedings, the main issue for the Court dealt with a statute that made bigamy illegal. The First Amendment to the U.S. Constitution guaranteed the right to the "free exercise" of religion. But the question before the Court was one of not only faith or beliefs but of actions based upon those beliefs. Was George Reynolds guilty of breaking the law even if his religious beliefs condoned his actions? Opinion:
If Reynolds knew at the time of his second marriage that he was still married to his first wife this knowledge was enough to show his intent to break the law. It was found by the trial court that he was aware of the law against bigamy when he married his second wife. He was not excused from the requirements of the law just because he believed his actions to be sanctified by his church. Nor was he excused from the effects of the law just because he thought it was a bad law. The law was to be applied to all people regardless of their religious beliefs. Context:
The fact that Mormon women had voted to support polygamy did not affect the firmness of the Court's position (Maynard v. Hill, 1888 and Murphy v. Ramsey, 1885). In 1890, the Supreme Court reaffirmed that polygamy destroyed "the purity of the marriage relation" even as it "debase[d]" men as well as women. (Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 1990; and Davis v. Benson, 1890). These decisions by the Court in 1890 ended for all practical purposes any questions about the legality of polygamy. The Mormon Church officially ended polygamy that same year. As a result, Utah became a state in 1896, granting suffrage to women in its state constitution. Impact/Consequences:
Usually with rights related to marriage, states have the authority to determine what the law is. The Court has determined, however, that states may not refuse to marry interracial couples (Loving v. Virginia, 1967). Currently, the debate centers around the concept of same-sex marriages and how the society does or does not benefit from such unions, and how individual rights are being affected. Some states have, in response to the organized efforts to make same-sex unions legal in all states, passed laws that define marriage as a union between one man and one woman. As the current Supreme Court is "under construction" while with the appointment of two new justices, it is not at all clear how the laws regarding marriage will develop. Speaking constitutionally, the Court's opinion in Reynolds looked beyond the language of the First Amendment to the "original intent" to find that religious practices that go against the public interest cannot be protected. Quotes:
"Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstance."
Questions to Ponder:
Why is it significant that this case developed in Utah? Should the federal government be able to dictate what people in Utah do? Should the legislative bodies of government have any say in religious activities? In what ways should the government limit acts based upon religious beliefs? Who should determine who can get married? Federal government? State government? Churches? Should there be any limitations on who can get married? Should it be limited by age, citizenship, who a person who is related to, race or gender? Selected Bibliography:
Cresswell, Stephen. Mormons, Cowboys, Moonshiners, and Klansmen: Federal Law Enforcement in the South and West, 1870-1893. 1991. Gordon, Sarah Barringer. The Mormon Church: Polygamy and Constitutional Conflict in the Nineteenth Century America. Chapil Hill: University of North Carolina Press, 2002. Weisbrod, Carol and Pamela Sheingorn, "Reynolds v. United States: Nineteenth-Century Forms of marriage and the Status of Women," Connecticut Law Review 10 (Summer 1978): 828-858. Beecher, Maureen Ursenbach et al. eds., Sisters in Spirit: Mormon Women in Historical and Cultural Perspective. Urbana: University of Illinois Press, 1987. Gateway Links: |
| L'Hote v. City of New Orleans
[1900] Court held the establishment of a prostitution district as a state’s right to protect the general citizenry. Police Power delegated to the states, indirectly legalized prostitution in New Orleans. Gateway Links: |
| U.S. v. Bitty
(1908)
Decided vote by 9 to 0
Conflict:
The Immigration Act of 1907 criminalized the act of bringing into the United States any woman or girl for the purpose of prostitution "or any other immoral purpose." John Bitty was arrested for bringing a woman, not his wife, to the United States. The woman, Violet Sterling, was defined by the charges as his concubine (or mistress). One issue before the Court was whether the federal authority (Congress) had the right to determine immigration matters as it related to prostitution. At first, states regulated their own ports. They had the authority to refuse to let certain persons, such as paupers and diseased persons, from coming ashore. An analogy would be stopping the importation of dangerous or illegal cargo by port authorities. Starting with cases in 1849, the Court ruled that the issue of immigration fell under federal control. Also at issue was the scope of the phrase "or any other immoral purpose" as it related to the limitations of who could come into the United States and for what purpose. The circuit court that heard Betty's appeal of his conviction, which carried imprisonment and deportation for Violent Sterling, concluded that the indictment should be dismissed. It ruled that the statute did not make it "an offense to bring or import an alien woman into the United States for the purpose of having her live as a concubine." In the circuit court's opinion, prostitution was one thing but living as a concubine was not distinctly forbidden by the law or clearly immoral. Opinion:
It was noted that the statute reflected common views on morality--basically, when it was proper for people to have sexual relations. The terms of the relationship, whether paid for or not, were to be regulated for the public good. The Court stated its view of concubines directly: "The prostitute may, in the popular sense, be more degraded in character than the concubine, but the latter none the less must be held to lead an immoral life, if any regard whatever be had to the views that are almost universally held in this country as to the relations which may rightfully, from the standpoint of morality, exist between man and woman in the matter of sexual intercourse." Context:
Additionally, the nation was excited in general about the dangers immigration posed to the social fabric of American society. Asian immigrants were routinely brutalized and legally discriminated against. Eastern Europeans were feared as potential anarchists and socialists who brought anti-American values to the nation. And more and more Americans wanted to cut off all immigration of foreigners, even those from England, in what amounted to a tidal wave of hysterical nativism. Justice John Marshall Harlan, who is remembered today for his powerful and solitary dissent from the majority opinion in Plessy v. Ferguson (1896), which upheld segregation of the races, had been an active member of the nativist Known-Nothing movement in his youth. Impact/Consequences:
In 1917, in the case of Caminetti v. United States, the Court upheld the Mann Act by criminalizing the trafficking of women across state lines. It also expanded the definition of immoral acts to include consensual sex acts outside of marriage. In this case, two young men were arrested and charged with debauchery, which the Mann Act had outlawed, for traveling with their girlfriends in a free-wheeling sexual escapade in California and Nevada. More famously, the African-American boxer, Jack Johnson, was arrested and sentenced to a year in jail for transporting his mistress, a white woman, from Pittsburgh to Chicago. Between 1910 and 1915, over 1000 defendants, mostly men, were found guilty of "white slavery" under the provisions of the Mann Act. In the years between 1927 and 1937, a study found that 156 women were sent to prison under the Mann Act, and around 23 percent of them were not prostitutes but unmarried women traveling with married men. The Court's opinion in Bitty and Caminetti looked upon female prostitutes as enslaved women that had to be protected and liberated from sexual deprivation. Few Americans in positions of authority could comprehend the possibility that some women might choose prostitution as a job or as a means of escaping abject poverty. In many ethnic working-class neighborhoods, prostitution was a means of keeping the family together during times of unemployment or when fathers and husbands had been hurt on the job without any medical insurance. That is one of the reasons that prostitution was never a popular reform movement among the working class during this era. In recent years the importation of children, either internationally or interstate, to become a part the pornographic industry intensified the debate about prostitution. Laws were extended in recent history to define child pornography as a form of child abuse and to extend protection to include boys. Despite arguments about free speech, the Court has determined that the government may interfere to regulate the pornography industry as it is related to children. Quotes:
"...nothing could be more grotesquely unjust than a code of morals, reinforced by laws, which relieves men from responsibility for irregular sexual acts, and for the same acts drives women to abortion, infanticide, prostitution, and self-destruction."
"People call me a feminist whenever I express sentiments that differentiate me from a doormat or a prostitute."
"Personally, I never met a white slave in my life ... If captive females were sold, drugged, or slugged into prostitution, I never knew a case."
Questions to Ponder:
The Immigration Act of 1907, the Mann Act, and U.S. v. Bitty appear to protect women and girls from being exploited as prostitutes. Do you think that the intent of the legislation and court cases were meant to stop John Bitty and Violet Sterling from having a sexual relationship? Does voluntary prostitution harm society? How? How do you distinguish between voluntary and forced prostitution? Should those who engage in prostitution simply be left alone by government regulation of any kind? Should prostitution be legalized, regulated, taxed? Does prostitution set the tone for condoned violence against women and children? Prostitution is often viewed as a topic relating to women and girls. How does the reality of male prostitution color your opinion of the legality of the profession? Selected Bibliography:
Friedman, Lawrence M. Crime and Punishment in American History. New York: Basic Books, 1993. Langum, David J. Crossing Over the Line, Legislating Morality and the Mann Act. Chicago and London: The University of Chicago Press, 1994. Outshoorn, Joyce. ed. The Politics of Prostitution, Women's Movements, Democratic States and the Globalization of Sex Commerce. Cambridge, UK ; New York: Cambridge University Press, 2004. Rowland, Debran. The Boundaries of Her Body, The Troubling History of Women's Rights in America. Naperville, Illinois: Sphinx Publishing, 2004. Gateway Links: |
| AR v. U.S.
[1913] Court affirmed two men guilty of tranporting a sevnteen-year-old girl across state lines for purpose of 'debauchery'. |
| U.S. v. Holt
[1915] Court overturned the ruling that protected a prostitute from prosecution for conspiracy to transport across state lines. Dissenting opinion argues that the intent of the act to protect women from a form of slave trade compels the status of the prostitute as that of victim, no matter the circumstances and therefore protected her from prosecution. |
| Hansen v. Haff
[1934] A Danish woman immigrated to the United States and became a domestic in 1922. She began an extramarital affair with the husband. In 1931, she returned to Denmark for a visit accompanied by him. When they returned, the Secretary of Labor barred her reentry under the "immoral purposes" clause of the 1917 Immigration Act, claiming that her purpose in returning was to live as a concubine. In the majority opinion, the Court ruled that the affair did not constitute immoral practices because her primary reason for returning involved the resumption of domestic duties. Pierce Butler, in dissent, argued the legality of the ban citing her lifestyle, the extramarital affair, as a violation of the Act. Gateway Links: |
| Mortensen v. U.S.
[1943] A couple, who ran a bordello, took their two employees on a trip to Yellowstone and Salt Lake City, Utah. The federal authorities, based on the interstate route of the couple's return route, charged them with transporting the two women for the purpose of prostitution. The Court, opinion by Frank Murphy, citing Hansen v Haff, ruled the primary purpose of the trip to be "innocent recreation and [a] holiday" and not a "calculated means for effecting sexual immorality" dismissed the conviction. The dissent, including Chief Justice Harlan Stone, termed the women "inmates" and felt the return trip supported the initial judgment and felt it should be upheld. Gateway Links: |
| Cleveland v. U.S.
[1946] The majority voted to uphold the conviction of men in a Mormon splinter sect based upon the Mann Act. The Court majority ruled the Act was not "confined to commercial sexual vice;" thereby qualifying the transportation of women across state lines with bigamous intent as an immoral act. They further labeled bigamy a "notorious example of promiscuity." In dissent, it is observed that although not condoned, polygamy is one of many forms of marriage. Both sides engaged a debate concerning the history and cultural norms of marriage as it applies to this case. Gateway Links: |
| Musser v. UT
[1948] Individuals in Utah were convicted of pushing a pro bigamy position that the state saw as "injurious to public morals." The Court heard the case based on the vagueness of the statue. The majority, in an opinion read by Robert Jackson, upheld the convictions based on a more specific section of the statue, but remanded the vagueness question back to the Utah Supreme Court. The dissenters on the Court believed that the basis for the conviction was unclear and that quite possibly the individuals were found guilty for simply advocating a position. Gateway Links: |
| Wyatt v. U.S.
[1960] The government convicted a man for transporting a woman across state lines for the purpose of prostitution. Subsequent to the arrest, the two married. The man sought to overturn his conviction because his wife was compelled to give testimony against him. The Court, in an opinion by John Harlan II, stated that when the wife is the victim, an exception might be made in regards to spousal privilege. The dissenters reasoned the majority saw the woman as unable to think separately from her husband. Based on this, they objected to the "lack of independent will theory" as legislating where Congress had not. Gateway Links: |
| Boutilier v. Immigration Services
[1967] Officials at the Department of Immigration ordered a twenty-one year old man, who admitted to homosexual experiences, deported under the Immigration and Nationality Act of 1952 as a person "afflicted with [a] psychopathic personality." Using Congressional records to establish the intent to include homosexuals under the law, the majority, in an opinion written by Tom Clark, upheld the deportation order. In dissent, William Douglas, argued the vagueness of the law might lead to prosecution of people who were merely "unpopular." He further reasoned that the Court needed to rely on the "informed judgment of experts" and not Congressional arguments to determine the true nature of the individual's "problem." Gateway Links: |
| Craig v. Boren
[1976] Women/Gender--Sexual Orientation (Alcohol regulation, sex-age differential) Gateway Links: |
| Romer v. Evans
(1996)
Decided by a vote of 6 to 3. Conflict: In Colorado several liberal municipalities (Boulder, Aspen, and Denver) passed laws outlawing discrimination against homosexuals on the grounds that rights could not be denied to people based on their sexual orientation. Such laws included the right of homosexuals to be free from discrimination in housing, employment, health and welfare services, and other transactions and activities (such as bars, restaurants, and hotels). In response to these allegedly protective laws, a coalition of fundamentalist religious groups and "family values" citizens pressed for and won a statewide referendum (Amendment 2 to the state constitution) that effectively repealed the above laws and barred all legislative, executive, or judicial activity by the state or local governments aimed at protecting persons based on their sexual lifestyle and orientation. The specific laws in question banned several categories as the basis for discrimination, including age, military status, marital status, pregnancy, parenthood, custody of minor child, political affiliation, physical or mental disability, and sexual orientation. The Amendment eliminated only one of these categories from the list: sexual orientation. Richard Evans, a gay activist and head of Denver's HIV resource project, challenged Amendment 2 as an unconstitutional act of discrimination designed to deny gays the protection of the laws. Its only rationale, Evans argued, is to punish gays and lesbians because of their sexual orientation. Opinion: Colorado argued that Amendment 2 was designed to "respect some of its citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality." Colorado argued that providing protection for homosexuals was giving them "special rights." The Supreme Court's majority opinion of 6 to 3 held that Amendment 2 did not pass the "rationale relationship" test, which requires that a state law must be "rationally related to a legitimate government interest." The Court ruled that the very nature of the law itself violated the Equal Protection Clause of the Fourteenth Amendment by singling out a group of people (homosexuals) who could not be protected by laws from discrimination. Moreover, the Court noted that the only objective for this Amendment appeared to be the dislike of gays by the majority of people in the state. The Court stated that laws prohibitiny discrimination based on sexual orientation simply provide homosexuals with the same rights as everyone else. In writing for the Court, Justice Anthony M. Kennedy did not raise homosexuals to the status of a specially protected class of people, similar to a status accorded African Americans. Rather, he argued that all people have a right to be considered on their merits irrespective of their race, national origin, religion, gender, disability, and sexual preference. Laws that disallow discrimination on these grounds are designed to promote equal treatment. Nevertheless, the Court's three dissenters (Atonin Scalia, Clarence Thomas, and William H. Rehnquist) saw this as another example of the people losing a battle in the cultural wars being fought in the nation. Scalia especially argued that the people of Colorado were within their constitutional rights to try to "preserve traditional sexual mores" for the communities in which they lived. He further noted that antidiscrimination laws amounted to special protection for gays, making them the objects of "preferential treatment" and "favored status" denied to other people. Discriminating against gays was no different, he argued, than refusing to offer a job to an applicant (or associate with someone) "who is a Republican, an adulterer, a womanizer, or because she wears real-animal fur...." Context: When this case was written, Bowers v. Hardwick (1986), which held that the state of Georgia could punish consensual and private homosexual acts, was still considered good law. In Bowers, the Court upheld a state law in Georgia that criminalized sodomy principally because the law did not limit the crime to same-sex adults. The Court held that states could make laws that regulated sexual behavior between consenting adults. In the late 1980s, two dozen states outlawed sodomy. Local legislation in Colorado took the opposite track, passing laws that protected gays as gays. The Romer decision paved the way for the overturning of Bowers in Lawrence v. Texas, (2003). In Lawrence, the Court could found by a vote of 6 to 3 no reason (rational or otherwise) for a state to maintain laws that criminalized sex between same-sex, consenting partners. Chief Justice Rehnquist, and Justices Scalia and Thomas also dissented in this case. Impact/Consequences: The Court does not (although Justice Scalia might disagree) directly state that homosexual sex is a fundamental right. Its language, however, makes private, adult, consensual sex a matter to be considered part of a person's "liberty" under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Such a liberty interest can be tied to the right of privacy found by the Court in Roe v. Wade (1973). Although the right of privacy is not specifically found in the U.S. Constitution, the Court has found such a right in the construction of the ideas of what constitutes personal decisions relating to sexual conduct, birth control, and abortion. In Lawrence, the Court came down firmly in defense of the dictum that states could not easily intrude into the personal and private lives of individual citizens. The question of how the Court would rule on controversial issues such as gay marriage and gays in the military is still an open one. Suffice it to say that Romer and Lawrence seem to offer a precedent that might be applied to these issues by Justices in agreement with both rulings. Quotes: "We cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint."--Justice Anthony Kennedy, writing for the majority in Romer v. Evans "Amendment 2 is a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against efforts of a politically powerful minority to revise those mores through use of the laws."--Justice Antonin Scalia dissenting in Romer v. Evans "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions." Justice Anthony Kennedy writing for the majority in Lawrence v. Texas "I write separately to note that the law before the Court today 'is ... uncommonly silly.' If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to decide cases 'agreeably to the Constitution and laws of the United States.' And ... I 'can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,' or as the Court terms it today, the 'liberty of the person both in its spatial and more transcendent dimensions.'"--Justice Clerence Thomas dissenting in Lawrence v. Texas Questions to Ponder: Should homosexuals have the same kind of civil rights as everyone else? Why should sexual orientation be a category that limits or promotes certain laws, for example, employment laws or government benefits? What if Colorado's Amendment 2 (which was voted on by the citizens of the state) was written to take "age" out of the list of people to be protected from discrimination--would that be unconstitutional? Age is not a "suspect class," but then the Court declined to say that sexual orientation was either. Some of the laws that banned discrimination were from the metropolitan areas of Colorado (Denver, Boulder, Aspen). Why might more populous cities be more likely to offer such protection? States have the right under their "police powers" to legislate regarding conduct that harms the health, safety, and welfare (or morals) of the community. (States have previously used their police powers to deny women the right to work in certain industries. Now, such limitations are unconstitutional.) Why can't a State define what is and is not sexually moral among adults? What harm is a State trying to protect against when it declares that homosexuality is illegal? What harm is a State trying to counter when it declares that there can be no laws protecting a certain class of people? How can a local authority allow people to register as domestic partners, and companies provide benefits to same-sex couples, but the state deny them the same right? Should a state be able to tell companies how they can administer their pay and benefits? Some people might refuse to do business with companies that promote, or simply allow for, an equitable working environment regardless of sexual orientation. Is "voting" with your dollars more effective than voting at the polls? There are laws that limit people's sexual activities. There are laws that punish adults who sexually abuse children, that forbid closely related people from marriage to one another, and that ban polygamy. Why should (or should not) the law declare that sexual relationships between same-sex couples are criminal? How is discrimination on the basis of sexual orientation the same or different than discrimination based upon gender or race? Does discrimination based upon sexual orientation have the same historical significance that race discrimination has had? In this case the Court used the rational relationship test to judge the validity of Amendment 2. Was this the right standard for the Court to apply? Selected Bibliography: Raeburn, Nicole C. Changing Corporate America from Inside Out: Lesbian and Gay Workplace Rights. Minneapolis: University of Minnesota Press, 2004. Riggle, Ellen D.B. and Barry L. Tadlock. eds. Gays and Lesbians in the Democratic Process: Public Policy, Public Opinion, and Political Representation. New York: Columbia University Press, 1999. Russell, Glenda Marie. Voted Out: The Psychological Consequences of Anti-Gay Politics. New York: New York University Press, 2000. 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