The Unit
Women in Politics
As President Joe Biden presented his first address to Congress on the ninety-ninth day of his Presidency, Vice President Kamala Harris and Speaker Nancy Pelosi sat on the stage. It is remarkable that women have finally broken down several of the barriers and glass ceilings in politics and government. It has been a lengthy, challenging fight for gender equality which was a two hundred and forty-five-year journey.
Numerous inequities are still encountered by women in our democratic society; the Covid-19 pandemic is amplifying these inequalities. Domestic violence, sexual harassment, abortion, reproductive rights, pay inequities, education and workplace discrimination, affirmative action, incarceration, childcare, and poverty are now several daily injustices women face. When women have a political voice, many support government policies that promote education, force businesses to provide safe work environments, pay fair wages and maintain clean and safe cities.
Biden acknowledged that women, especially women of color, have not had a fair shot in the United States on his campaign trail. Noting centuries of sexist and racist laws and legislation, he promised to address this imbalance of power and opportunity by improving women's political, economic, and social inclusion. Biden established the Gender Policy Council (G.P.C)8 on March 8, 2021, to examine numerous issues that apply to gender concerns.9 Section I, Policy, states, "Advancing gender equity and equality is a matter of human rights, justice, and fairness. It is also a strategic imperative that reduces poverty and promotes economic growth, increases access to education, improves health outcomes, advances political stability, and fosters Democracy."10 The full involvement of every person, including women and girls across all facets of society, is essential to the economic well-being, health, and security of our Nation. Mobilizing people in politics and legislative fights in our government reminds us that change happens slowly and is a step-by-step process.
Biden's Policy goes on to state, "It is, therefore, the Policy of my Administration to establish and pursue a comprehensive approach to ensure that the Federal Government is working to advance equal rights and opportunities, regardless of gender or gender identity. This Policy will expand domestic and foreign policy, including promoting workplace diversity, fairness, and inclusion across the Federal workforce and military."11 These issues are immense and include women, especially women of color, in power and the workforce. Biden's nominees include the first Native American woman (Deb Haaland) to hold a cabinet position and the first openly transgender woman (Rachel Levine) to be confirmed to federal office. The Child Tax Credit and free childcare are part of Biden's infrastructure plan to help provide economic value to women that take care of their children at home and provides the ability for women to pursue careers more immediately.
After 46 white males have presided over the White House, is the country ready to elect a female president? Margaret Chase Smith, Shirley Chisholm, Patricia Schroeder, Elizabeth Dole, Carol Moseley Braun, and Hillary Clinton have one thing in common. They made unsuccessful bids for the Presidency of the United States. Countries like Ireland, Great Britain, and Germany have already elected female leaders, and the United States has yet to have a women President.12 Women have moved into other leadership roles within the U.S. government, including Secretaries of State Madeleine Albright and Condoleeza Rice, Speaker of the House Nancy Pelosi, and currently Vice-President Kamala Harris.
Written by National Woman's Party President Alice Paul in 1923, the proposed Equal Rights Amendment became one of the most contested pieces of legislation in the twentieth century. It was contentious when Paul first introduced it only three years after the Nineteenth Amendment granted women the right to vote in 1920, unleashing almost a hundred years of national debate. Almost immediately in 1923, a split developed between the more militant feminists whose goal was full equality under the Constitution and the social reformers and organized labor who feared leaders would use the Amendment to strike down laws they had secured to protect women in the workplace.13 Opposition to the E.R.A. began to dissipate somewhat in the 1930s. Roosevelt’s New Deal “enacted social welfare laws that regulated wages and hours and instituted fair labor standards for both male and female workers, rendering protective laws less necessary.”14 In the 1950s, when the Senate passed the E.R.A., support widened among Republicans, Democrat Eleanor Roosevelt and other prominent women. Many women dropped their opposition to the E.R.A. to support the United Nations Charter, which affirmed "equal rights of men and women.”
There has been a long road to gender equality for women, but they have won a great deal even from the E.R.A. ratification effort. The E.R.A. battle was just one front in a much larger war, which never meant legal equality and did not stand alone as feminism's goal and legacy. "Working-class women asserted a vision of a society free of economic exploitation, one in which working people battle collectively for a fair share of political and economic power and in which a robust and active government provides the means for all to live in economic security and human dignity. That vision is as important today as it ever was.”15
Congress passed the E.R.A. amendment to the Constitution in 1972. "Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex." It was sent to the states for ratification. The E.R.A. did not ratify, but the Amendment's proposal and defeat played a crucial role in enabling and shaping the modern law of sex discrimination. Citizens regularly seek constitutional change through lawmaking, legislation, failed amendments, campaigns for elective office, and protest movements. Other states proposed or passed recission bills, despite legal precedent that states do not have the power to retract ratification.
Women did not concur as to whether the E.R.A. should pass. It seemed like a reasonable measure, but people like Phyllis Schlafly, with an energetic countermobilization, insisted that it would hurt women by taking away their unique status as housewives. Ratification stalled on December 19, 1972. Phyllis Schlafly published "What is Wrong with 'Equal Rights for Women," launching the campaign opposing ratification of the Equal Rights Amendment. Schlafly argued, "that the E.R.A. will force women into the military, jeopardize benefits under Social Security, and weaken existing legal protections under divorce and marriage laws.” Schlafly played a large part in bringing the movement toward ratification of the Amendment to a halt.16
"I never doubted that equal rights were the right direction. Most reforms, most problems are complicated. But to me, there is nothing complicated about ordinary equality."- Alice Paul.
Is passing the Equal Rights Amendment necessary?
The women who opposed the E.R.A., like Schlafly, believe that the E.R.A. is unnecessary. The Equal Protection Clause of the 14th Amendment covered multiple forms of discrimination based on sex. Those in opposition see no reason why the E.R.A. should pass. There are still obvious gaps in existing laws, especially when it comes to domestic violence, sexual harassment, pay equity, and LGBTQ issues.17 Some regard the Amendment as an essential protection against the unpredictability of future administrations. "The statutes and case laws that have produced major advances in women's rights since the middle of the last century are vulnerable to being ignored, weakened, or even reversed."18
"Congress can amend or repeal anti-discrimination laws by a simple majority, the Executive Branch can negligently enforce such laws, and courts, including the Supreme Court, can interpret the intermediate standard of review to permit certain forms of sex discrimination."19 Reva Siegel, in her landmark essay on Constitutional culture and conflict, pointed out that the Supreme Court gave women some of what they wanted in legislation even though the E.R.A. did not get ratified. Others consider it a symbolic battle. Supreme Court Justice Ruth Bader Ginsburg, a supporter of the E.R.A., said in February 2020, "Every Constitution in the world written since the year 1950 ... has the equivalent of an Equal Rights Amendment, and we do not."20
14th Amendment of the U.S. Constitution
The word “equal” became part of the Constitution in the 14th Amendment. The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws."21
For the first century of the Fourteenth Amendment's life, no court interpreted the Constitution to prohibit state action favoring men over women. The women's rights movement in the 1960s and 1970s (the second wave of feminism) revived and insisted on changing social and legal rights and responsibilities. The fact of women's involvement in the civil rights movement, the anti-war movement, and their changing role in the economy created a social context in which many women became active supporters of enhanced legislation for themselves.22 The plan they pursued had already been well established in the long history of women's rights activism.
In the 1960s, with heightened concerns about the Vietnam War draft calls, colleges and universities started accepting more women in law schools and other occupations. The Supreme Court from 1953-1969 under Earl Warren was the most liberal in American history. The Warren Court is atypical of most of the Supreme Courts in our history. Currently, the Court upholds the status quo and is usually much more conservative. Courts do not protect individual rights. The progressives liked the Warren court, as did the civil rights groups and women's rights advocates for advancing their causes and racial equality.
In the 1970s, a mobilized feminist movement persuaded Congress to send an Equal Rights Amendment to the states for ratification. "With energetic countermobilization, the E.R.A. was defeated. The Court began to interpret the Fourteenth Amendment in ways that were responsive to the proponents of the Amendment, so much so that scholars have begun to refer to the resulting body of equal protection case law as a de facto E.R.A."23 Many scholars believe that the Equal Rights Amendment defeat shaped the equal protection doctrine prohibiting sex discrimination.
In Reva Siegel’s groundbreaking case study and lecture, “Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the de facto E.R.A.," she discusses how social movements change the ways Americans understand the Constitution. As Siegel points out, there are many avenues for a constitutional culture that lie outside of the courts. Siegel offers examples of her theory in action in the campaign for the E.R.A. and the Nineteenth Amendment. She discusses portraits of Pauli Murray, Tom Emerson, Betty Friedan, Sylvia Law, Phyllis Schlafly, and the young Ruth Bader Ginsburg and how these people helped shape the Constitution.24 Siegel discusses how democratic participation requires speech instead of violence and that the norms and practices of constitutional speech strengthen both self-government and the Constitution. Early reformers like Elizabeth Cady Stanton “positioned themselves simultaneously as interpreters of legal texts, religious texts, and life experience; they interpreted old sources to persuade."25
The Supreme Court victories better-served women than they would have by the passage of the sweeping E.R.A. The E.R.A. proscribed denying or abridging equal rights under the law by state or the federal government "on account of sex."26 Professor, Ian Shapiro discussed in the Yale National Institute seminar, Democracy, and Inequality, the complicated history for women and changes in legislation. Shapiro discussed how it is less challenging to have gender-based decisions in the Courts because the E.R.A. did not pass. By not passing the E.R.A., it kept gender out of being “constitutionalized.” If the E.R.A. had passed, gender would be suspect for strict scrutiny classifications under the Fourteenth Amendment equal protection jurisprudence, while now it is only subject to intermediate scrutiny. For example, with the passage of the Fifteenth Amendment, African Americans still had to fight for voting rights and against racially-based discrimination. The Fourteenth and Fifteenth Amendments only apply to federal laws and do not apply to State laws.
Fights in the Courts
There are profound shifts in gender relations over the past 100 years. "Cultural changes, technological, geopolitical, and economic differences each played a part in the change, including the development and distribution of the birth control pill, two world wars, and global economic integration."27 These changes pulled more women into the labor force, gave women both greater economic independence and gave women more reasons to seek a political and legal voice. All these trends contributed to constitutional change and the social movements pressing for them.
In Craig v. Boren (1976), the U.S. Supreme Court established a new standard of judicial review, intermediate scrutiny, for laws with gender-based classifications. David Boren, the defendant, was governor of Oklahoma when Craig filed the case. Craig sued Boren in a federal district court, alleging that the law violated the Equal Protection Clause.28 Sex discrimination cases for gender classifications used intermediate scrutiny." Intermediate scrutiny determines whether the law’s gender classification is substantially related to an important governmental objective.”29
In Bakke v. U of California (1978), the United States Supreme Court had a landmark decision. It upheld affirmative action, allowing race to be one of several factors in college admission policy. Proponents thought affirmative actions were essential, while opponents believed the decision violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Most affirmative action cases continued without change at the time. However, in 1996, Californians by initiative banned the state’s use of race as a factor in admission policies.
Ruth Bader Ginsburg worked to advance equal rights for women and men long before the Supreme Court. Ginsburg famously co-founded the Women's Rights Project at the American Civil Liberties Union (ACLU) as a lawyer and brought and argued the cases that led the High Court to affirm protections against gender discrimination.30
Ginsburg was one of nine women at Harvard Law School in 1956 and struggled to find a job once she graduated. As a professor at Rutgers Law School in 1963, Ginsburg made less than her male colleagues. She won five landmark cases on gender equality in the U.S. Supreme Court based on the protections of the Equal Protection Clause of the 14th Amendment. In 1976, in another case in which Ginsburg had filed a brief, the Justices set a standard still used today in sex discrimination cases. In Craig v. Boren (1976), the Court struck down an Oklahoma statute that said women as young as 18 could buy 3.2 percent beer while men had to be at least 21.
Ginsburg was as responsible as any one person for legal advances that women made under the Equal Protection Clause of the Constitution; as a result, doors of opportunity have benefited not only the women themselves but their families. Ginsburg had a lasting influence on women as a confident, hard-working female leader, and she energized young women with her rise as a pop culture icon, the infamous R.B.G. Ginsburg said in her book, My Own Words. "Feminism is the notion that we should each be free to develop our talents and not be held back by man-made barriers.”
Ginsburg co-founded the Women's Rights Project, which emphasized equal rights for women in many cases and policy proposals. In 1972, The Nixon administration passed Title IX legislation. Title IX of the Education Amendment Act guaranteed women equal access to athletic resources regardless of gender. It prohibited sex discrimination in all education programs and activities that received federal funds. The money universities spent on athletics would have to be allocated equally to women's and men's programs from then on.31
She was indispensable in the legal wall that protects Roe v. Wade which guaranteed women the right to choose their reproductive freedom in 1973. Ginsburg paved the way for the Equal Credit Opportunity Act, which passed in 1974 and allowed women to apply for credit cards, bank accounts, and mortgages without a male co-signer. Frontiero v Richardson was the first case Ginsburg argued before the Supreme court in 1972. The case centered on a female Air Force lieutenant who had been denied the same housing and medical benefits as her male colleagues. Ginsburg argued that the Air Force's statute for housing allowances treated women as inferior, and the Supreme Court ruled in her favor 8 to 1.32
Ginsburg pushed to protect pregnant women in the workplace. It was standard fifty years ago for women to be fired from their jobs when they were pregnant. Ginsburg argued that women should serve on juries, as in the case in 1979, Duren v. Missouri. At that time, jury duty was optional for women in several states because it viewed the responsibility as a burden for women whose role was at the "center of home and family life."
Before Ginsburg, State-funded schools did not have to admit women. In 1996, in the United States v. Virginia case, Ginsburg wrote that it is unconstitutional for schools funded by taxpayers to bar women. "There is no reason that the admissions of women capable of all activities required of (Virginia Military Institute) cadets would destroy the institute rather than enhance its capacity to serve the perfect union," said Ginsburg.
Ginsburg's work surrounding women's financial independence laid a base for further issues of equality and freedom. In 2007, she famously dissented from the Supreme Court's decision on the pay discrimination case, Ledbetter v. Goodyear Tire & Rubber Co. When five justices ruled against Lily Ledbetter in her pay discrimination case, Justice Ginsburg’s call to action inspired the public and Congress to change the law and strengthen equal pay protections. She was also a pivotal vote to help expand the concept of gender discrimination, as in the 2015 case Obergefell v. Hodges, which allowed the right to same-sex marriages in all fifty states.
Ginsburg shared how the #MeToo movement, like the gay rights movement and the feminist movement of the 1970s, is an example of how quickly social change can be produced by political activism from the ground up. In her view, legal change follows social and political change, not the other way around.
The women’s movement today is more dispersed and does not have a prominent leader, the intersectionality of the campaign is more complicated now. Intersectionality in social activities acknowledges that everyone has their own unique experiences of discrimination and oppression. We must consider anything that can marginalize people, including gender, race, class, sexual orientation, and physical ability.
After Ruth Bader Ginsburg’s death in the fall of 2020 and right before the Presidential election, Mitch McConnell and the leaders of the Republican party swore in the conservative Supreme Court judge, Amy Coney Barrett. In many ways, Barrett has a much more conservative belief system than Ginsburg. Roe v. Wade and the continued fight over abortion rights are major wedge issues. In the Seminole book, The Hollow Hope, author Gerald Rosenburg examines Supreme Court cases and how Roe v. Wade and Brown v. the Board of Education are overrated as agents of social change. In Oklahoma, the battle lines over Roe v. Wade are being contested now in State legislation.
In Brown v. Board of Education, "as a symbol, in and of itself, provides no evidence that the Court can produce significant social reform. It may prevent change."33 Rosenburg argues that many events happen in the world that does not influence later events. “Brown had effects, but it did not automatically further the cause of civil rights." By focusing on the actions of the Court, many people assume that its decisions play an important role in change. “This assumes the importance of the Court, rather than determining if in celebrating Brown v. Board of Education, Americans may believe that discrimination has subsided relieving them of the difficult task of confronting its deep-seated and ongoing, systematic nature."34
The celebration of Brown v. Board of Education serves an ideological function of assuring Americans that they have lived up to their constitutional principles without requiring them to do so. It encourages us to look to legal solutions for political and cultural problems. Brown v. Board of Education serves a deeply conservative function of diverting resources away from substantive political battles, where success is possible, to symbolic legal ones, where it is not.35
In Rosenberg’s controversial book, The Hollow Hope, he reveals that Congress, the White House, and a determined civil rights movement did far more than Brown to advance desegregation. At the same time, Rosenberg argues that pro-choice activists invested too much in Roe v. Wade at the expense of political mobilization. In these cases, and the ongoing fight for same-sex marriage rights, Rosenberg clarifies considerable evidence to overturn the common assumption that even unsuccessful litigation can advance a cause by raising its profile.36
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