Womens Rights in American Constitutional Law

1
Womens Rights in American Constitutional Law
2
The American Transition from Republic to
Democracy

• Amendments in this area
• 12 Changes in electoral college voting
• 15 Voting for African Americans
• 19 Voting for women
• 23 D.C. elections
• 24 No poll taxes in certain elections
• Voting for 18 year olds

3
19th Amendment 1920

• Amendment XIX
• The right of citizens of the United States to
  vote shall not be denied or abridged by the
  United States or by any state on account of sex.
• Congress shall have power to enforce this article
  by appropriate legislation.

4
Interpretation of the 19th Amendment
5
Women as Legislators and State Executives

• Women in Elective Office 2007
• In 2007, 87 women serve in the U.S. Congress.
  Sixteen women serve in the Senate, and 71 women
  serve in the House. The number of women in
  statewide elective executive posts is 76, while
  the proportion of women in state legislatures is
  at 23.5 percent.
• Congress
• Women hold 87, or 16.3, of the 535 seats in the
  110th US Congress - 16, or 16.0, of the 100
  seats in the Senate and 71, or 16.4, of the 435
  seats in the House of Representatives. In
  addition, three women serve as Delegates to the
  House from Guam, the Virgin Islands and
  Washington, DC.
• Statewide Elective Executive
• In 2007, 76 women hold statewide elective
  executive offices across the country women hold
  24.1 of the 315 available positions. Among these
  women, 46 are Democrats, 27 are Republicans, one
  is an independent, and 3 were elected in
  nonpartisan races.
• State Legislature
• In 2007, 1,735, or 23.5, of the 7,382 state
  legislators in the United States are women. Women
  hold 422, or 21.4, of the 1,971 state senate
  seats and 1,313, or 24.3, of the 5,411 state
  house seats. Since 1971, the number of women
  serving in state legislatures has increased more
  than four-fold.
• Source http//www.womenlegislators.org/women-legi
  slator-facts.php

6
The Equal Rights Amendment

• Section 1. Equality of Rights under the law shall
  not be denied or abridged by the United States or
  any state on account of sex.
• Section 2. The Congress shall have the power to
  enforce, by appropriate legislation, the
  provisions of this article.
• Section 3. This amendment shall take effect two
  years after the date of ratification.
• This amendment was written in 1921 by suffragist
  Alice Paul. It was approved by Congress in 1972.
  By the July 1982 deadline it had received
  ratifications by 35 states, but not the 38 needed.

7
What difference would the ERA have made?

• It would have supplemented the Equal Protection
  Clause as a basis for adjudicating womens claims
  to equality
• It might have elevated the level of judicial
  scrutiny in womens equality cases from
  intermediate to strict or near-strict.
• Other changes?
• Could conservative justices have argued that it
  really didnt change anything?

8
State Equal Rights Amendments

• Twenty-one states have equal rights provisions in
  their state constitutions. These states are
  Alaska, California, Colorado, Connecticut,
  Florida, Hawaii, Illinois, Iowa, Louisiana,
  Maryland, Massachusetts, Montana, New Hampshire,
  New Mexico, Pennsylvania, Texas, Utah, Virginia,
  Washington, Wisconsin, and Wyoming.

9
Texts of State Equal Rights Amendments

• Colorado "Equality of rights under the law shall
  not be denied or abridged by the
• state of Colorado or any of its political
  subdivisions because of sex." Colorado
• Constitution, Article II, 29 (1973).
• Montana The dignity of the human being is
  inviolable. No person shall be denied
• the equal protection of the laws. Neither the
  state nor any person, firm, corporation, or
• institution shall discriminate against any person
  in the exercise of his civil or political
• rights on account of race, color, sex, culture,
  social origin, or condition, or political or
• religious ideas. Montana Constitution, Article
  II, 4 (1973).
• Utah The rights of citizens of the State of
  Utah to vote and hold office shall not
• be denied or abridged on account of sex. Both
  male and female citizens of this State shall
• enjoy all civil, political and religious rights
  and privileges. Utah Constitution, Article IV,
• 1 (1896).
• Virginia The right to be free from any
  governmental discrimination upon the basis
• of religious conviction, race, color, sex, or
  national origin shall not be abridged, except
• that the mere separation of the sexes shall not
  be considered discrimination. Virginia
• Constitution, Article I, 11 (1971).

10
NOWs Modified Language for a New ERA (1995)

• THEREFORE BE IT RESOLVED, that the National
  Organization for Women (NOW) adopt the following
  as a working draft
• 1) Women and men shall have equal rights
  throughout the United States and every place and
  entity subject to its jurisdiction through this
  article, the subordination of women to men is
  abolished
• 2) All persons shall have equal rights and
  privileges without discrimination on account of
  sex, race, sexual orientation, marital status,
  ethnicity, national origin, color and indigence
• 3) This article prohibits pregnancy
  discrimination and guarantees the absolute right
  of a woman to make her own reproductive decisions
  including the termination of pregnancy
• 4) This article prohibits discrimination based
  upon characteristics unique to, or stereotypes
  about any class protected under this article.
  This article also prohibits discrimination
  through the use of any facially neutral criteria
  which have a disparate impact based on membership
  in a class protected under this article
• 5) This article does not preclude any law,
  program or activity that would remedy the effects
  of discrimination and that is closely related to
  achieving such remedial purpose
• 6) This article shall be interpreted under the
  highest standard of judicial review
• 7) The United States and the several states shall
  guarantee the implementation and enforcement of
  this article.

11
Clauses prescribing Equality for Women from Other
Constitutions

• Constitution of India, Article 15. Prohibition of
  discrimination on grounds of religion, race,
  caste, sex or place of birth
• (1) The State shall not discriminate against any
  citizen on grounds only of religion, race, caste,
  sex, place of birth or any of them.
• (2) No citizen shall, on grounds only of
  religion, race, caste, sex, place of birth or any
  of them, be subject to any disability, liability,
  restriction or condition with regard to-
• (a) access to shops, public restaurants, hotels
  and places of public entertainment or (b) the
  use of wells, tanks, bathing ghats, roads and
  places of public resort maintained wholly or
  partly out of State funds or dedicated to the use
  of the general public.
• (3) Nothing in this article shall prevent the
  State from making any special provision for women
  and children.

12
Constitution of South Africa 1996

• Equality
• (1) Everyone is equal before the law and has the
  right to equal protection and benefit of the law.
• (2) Equality includes the full and equal
  enjoyment of all rights and freedoms. To promote
  the achievement of equality, legislative and
  other measures designed to protect or advance
  persons or categories of persons, disadvantaged
  by unfair discrimination may be taken.
• (3) The state may not unfairly discriminate
  directly or indirectly against anyone on one or
  more grounds, including race, gender, sex,
  pregnancy, marital status, ethnic or social
  origin, colour, sexual orientation, age,
  disability, religion, conscience, belief,
  culture, language and birth.
• (4) No person may unfairly discriminate directly
  or indirectly against anyone on one or more
  grounds in terms of subsection (3). National
  legislation must be enacted to prevent or
  prohibit unfair discrimination.

13
State Action Once More

• Note that the equality clauses of Montana, India,
  and South Africa cover discrimination by
  non-state actors.

14
Can Constitutional Norms deal with Distinctive
Situations and Needs? CEDAW Article 14

• 2. States Parties shall take all appropriate
  measures to eliminate discrimination against
  women in rural areas in order to ensure, on a
  basis of equality of men and women, that they
  participate in and benefit from rural development
  and, in particular, shall ensure to such women
  the right
• (d) To obtain all types of training and
  education, formal and non-formal, including that
  relating to functional literacy, as well as,
  inter alia, the benefit of all community and
  extension services, in order to increase their
  technical proficiency
• (e) To organize self-help groups and
  co-operatives in order to obtain equal access to
  economic opportunities through employment or self
  employment
• (g) To have access to agricultural credit and
  loans, marketing facilities, appropriate
  technology and equal treatment in land and
  agrarian reform as well as in land resettlement
  schemes
• (h) To enjoy adequate living conditions,
  particularly in relation to housing, sanitation,
  electricity and water supply, transport and
  communications.
• UN Convention on the Elimination of All Forms of
  Discrimination Against Women

15
Was Roe v. Wade a victory for womens equality?
16
Affirmative Action for Women Legislators?

• Legal gender quotas are mandated either by the
  constitution (like in Burkina Faso, Nepal, the
  Philippines and Uganda), or by the electoral law
  (as in many parts of Latin America, as well as,
  for example, in Belgium, BosniaHerzegovina,
  Serbia and Sudan).
• But quotas may also be decided for voluntarily by
  political parties themselves, voluntary party
  quotas. In some countries, including Argentina,
  Bolivia, Ecuador, Germany, Italy, Norway and
  Sweden, a number of political parties have some
  type of quota. In many others, though, only one
  or two parties have opted to use quotas. However,
  if the leading party in a country uses a quota,
  such as the ANC in South Africa, this may have a
  significant impact on the overall rate of female
  representation. Yet most of the worlds political
  parties do not employ any kind of quota at all.
• http//www.quotaproject.org/aboutQuotas.cfm