Women\'s Rights Cases for Gender

WOMEN'S RIGHTS CASES for GENDER and the LAW

"…Woman, as a human being,

has rights the inevitable conclusion of the then new philosophical theory"

Mary Wollstonecraft

(Wollstonecraft & Pennell, 1891, p. viii).

Rights of Women "Tried"

In 1891, more than one hundred years ago, after Mary Wollstonecraft published "Rights of Woman," Horace Walpole, as a number of others during this time in American history, denounced her as a social outcast. Walpole "politely called" Wollstonecraft a "hyena in petticoats," a "philosophising serpent" (Wollstonecraft & Pennell, 1891, p. vii). Woman, as a human being, Mary Wollstonecraft (1891) asserts in a Vindication of the Rights of Woman, has rights (Wollstonecraft & Pennell, 1891, p. viii). This research paper examines a number of rights of women and how they achieved some of their current legal rights through the United States (U.S.) justice system. As this study relates considerations regarding numerous contemporary legal constraints women have previously countered, the researcher also reflects on five cases linking to legal rights for women. In the end, the researcher presents perceptions noting women's legal rights, yet to be achieved, which the researcher asserts, need to considered, secured and implemented in future policies.

During the course of this study, the researcher explores and notes the significance of the following cases:

1. Reed v. Reed, 404 U.S. 71 (1971): Contrary to the specification of the Idaho Probate Code "males must be preferred to females" for the appointment of administrators of estates, in Reed v. Reed, the Court ruled the dissimilar treatment of men and women by the law to be unconstitutional (the oyez…, 1971).

2. Craig v. Boren, 429 U.S. 190 (1976): In Craig v. Boren: Curtis Craig, a male during this time between the ages of 18 and 21 challenged an Oklahoma law prohibiting the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18. The Court found that: "Generalities about the drinking habits of aggregate groups did not suffice" ?(the oyez…, 1976, p.1). The Court also determined that in this particular case, the Twenty-first Amendment did not alter the application of the Equal Protection Clause.

3. United States ex-rel Robinson v. York, 281 F. Supp. 8 (D. Conn. 1968): In this case, the Court determined that disparate sentencing did, in fact, violate the equal protection clause of the Constitution was uniformly rejected by the courts; that sex-based disparate sentencing does violate the equal protection clause (Popiel, 1980).

4. Liberti v. York, 28 Conn. Supp. 9, 246 a.2d 106 (S. Ct. 1968): In Liberti v. York, a Connecticut superior court ruled that no "legitimate basis" for that state's sex-differential sentencing statute existed (Babcock, 1975).

5. Estelle v. Gamble, 429 U.S. 97 (1976): The Estelle v. Gamble case regarded medical care in the prison setting. The Supreme Court established that prison authorities must ensure "deliberate indifference" to the inmate's serious illness or injury must not be tolerated (Morrison, 1996, p. 100-101).

The Bill of Rights "Protection"

In Fundamentals of American law, Alan B. Morrison (1996) recounts that in the 20th century, the Bill of Rights' protection were expanded a third time when the 19th Amendment (1919) assured women of the right to vote. In 1787, primarily because the U.S. accepted the moral blights of slavery and the subordination of women, the original Bill of Rights did not voice any considerations regarding the equality concerns/issues (Morrison, p. 111).

The protections the contemporary Bill of Rights proffers are broad, Morrison notes, however, they have boundaries. When they stand alone, the Bill of Rights does not protect individuals from misuse of private power. Morrison notes that the Bill of Rights does not "guarantee economic or social movements. The document concentrates, instead, on preserving the personal and political rights needed for the proper functioning of the tolerant political democracy" (Morrison, p. 83).

Bill of Rights Components

Morrison explains that the original Bill of Rights, the first 10 Amendments, codifies 31 specific ideas, which include the following:

1. No establishment of religion (1st);

2. Free exercise of religion (1st);

3. Free speech (1st);

4. Free press (1st);

5. Free assembly (1st);

6. Petition for redress of grievances (1st);

7. Right to keep and bear forms (2nd);

8. No Quartering troops (3rd)

9. No unreasonable searches (4th)

10. No one reasonable seizures (4th)

11. Necessity of warrant on probable cause (4th)

12. Specifitivity of warranty (4th)

13. Grand jury indictment in serious cases (5th)

14. No double jeopardy (5th)

15. No compulsory self-incrimination (5th)

16. No deprivation of life, liberty for property without due process of law (5th)

17. No taking of property for private use (5th)

18. No taking of private property for public use without just compensation (5th)

19. Impartial criminal jury trial (6th);

20. Speedy and public trial (6th);

21. Criminal venue - vicinage (6th);

22. Notice of criminal charges (6th);

23. Right of compensation (6th);

24. Compulsory process for criminal defendants (6th);

25. Counsel in criminal cases (6th);

26. Civil jury trial (7th);

27. No excessive bail (8th);

28. No excessive fines (8th);

29. Note cruel and unusual punishments (8th);

30. Enumerated rights do not preclude other rights (9th);

31. Powers not dedicated to national government are reserved two states and people (10th) (Morrison, 1996, p. 85).

After the U.S. Supreme Court adopted the 14th Amendment; it has endeavored to prevent racial minorities been excluded from jury service. Recently, the Supreme Court invalidated state rules and keeping women from serving on juries (Morrison, 1996, p. 110).

Due to the increase in women and minorities, the composition of the law profession has changed over time. During 1963, of the only 3.7% of the approximately 47,000 law students enrolled in the 135 American Bar Association accredited aw schools were women. In 1994, when 129,000 students attended 177 accredited law schools, women made up approximately 43.7% of the student body (Morrison, 1996, p. 151).

The Code of Judicial Conduct

A judge is instructed to refrain from any semblance of impropriety his/her activities, Morrison (1996) purports as he addresses a number of facets of the judge's work and life.

One interesting point to note: The 1999 (however not the 1972) judicial conduct code also prohibits judges from joining organizations, including clubs, that practice "invidious" discrimination based on a person's 'race, sex, religion or national origin. "An organization invidiousouly discriminates, Morrison points out, if it specifically, arbitrarily excludes minorities, women, or others (Morrison, 1996). U.S. law specially relates to the enforcement of equal treatment in the courtroom, as judges are instructed (in the 1990 Code) to: "Require lawyers and proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation for socioeconomic status, against parties, witnesses, council, or others" (Morrison, 174).

During the next segment of this paper, the researcher presents more information about each of the aforementioned cases.

CONSIDERATIONS CONCERNING CASES

"…on August 26, 1920,

the Nineteenth Amendment to the United States Constitution

became law, and women could vote in the fall elections, including in the Presidential election"

- Jone Johnson Lewis

(August 26, 1920, 2009, ¶ 15).

Not until July, 1848, at the Seneca Falls Woman's Rights Convention which Elizabeth Cady Stanton and Lucretia Mott organized, were votes for women first seriously proposed in the U.S. Charlotte Woodward, one woman who attended the 1848 convention was nineteen years old as this time. Seventy years later in 1920, when women won the right to vote Charlotte Woodward, the only remaining living participant who attended the 1848 Convention cast her vote at the age of eighty-one years old (Lewis, 2009). The point Wollstonecraft (1891) made during her lifetime, that woman, as a human being has particular rights, as Wollstonecraft, Woodard, and others knew frequently encountered legal challenges.

In "Transforming Society through Law: St. George Tucker, Women's Property Rights, and an Active Republican Judiciary, M.D. Mcgarvie (2006) also notes that during the 1790s, few individuals in America "considered women to be equal to men legally and socially. Believers in gender equality were even rarer among elite southern males…" (Mcgarvie, 2006, ¶ 1). In this time in America, most in society relied on patriarchal authority, primarily male, and prescribed roles, behaviors, and attitudes, primarily male, for social leadership/

A. Fulkerson and S.L. Patterson (2006) note in "Victimless Prosecution of Domestic Violence in the Wake of Crawford V. Washington," that discrepancies between men and women may be found in as American family values, economics, and sexism in bureaucracy (including the criminal justice system) throughout history. In Judicial Rhetoric and Women's Place, the United States Supreme Court's Darwinian Defense of Separate Spheres," Katie L. Gibson (2007) asserts that for the first half of the twentieth century, the leading concern in women's rights litigation involved women's rights in the workplace (Gibson, 2007).

Gibson notes that the first women's rights case the United States Supreme Court ruled on was Bradwell v. Illinois, the 1879 case which initially challenged a sex classification as a violation of the Fourteenth Amendment. In this case, "After Myra Bradwell studied law under her husband and passed the Illinois bar examination, she filed suit when "the Illinois Supreme Court refused to admit her because of her sex. The United States Supreme Court ruled in favor of Illinois and argued that the Fourteenth Amendment was designed to protect against race discrimination only…" Gibson, 2007, Background to Muller v. Oregon section ¶ 1). The Court ruled that the Fourteenth Amendment did not include the protection of women's rights.

The following depicts Justice Bradley's concurring opinion regarding Bradwell's

Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.... The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. (20-21) Background to Muller v. Oregon section, ¶ 3).

Bradwell v. Illinois (1979) constitutes the first case initiated in a long line of cases that denied women protection against sex. This study examines five cases from the long line of cases relating to women's rights, from the past. As noted in this paper's introduction, the following five cases serve as samples of cases relating to women's rights:

1. Reed v. Reed, 404 U.S. 71 (1971)

2. Craig v. Boren, 429 U.S. 190 (1976)

3. United States ex-rel Robinson v. York, 281 F. Supp. 8 (D. Conn. 1968)

4. Liberti v. York, 28 Conn. Supp. 9, 246 a.2d 106 (S. Ct. 1968)

5. Estelle v. Gamble, 429 U.S. 97 (1976):

Reed v. Reed, 404 U.S. 71 (1971)

The Oyez Project recounts that in regard to Reed v. Reed (1971), the Idaho Probate Code specified that "males must be preferred to females" in appointing administrators of estates (1971, p. 1). Following the death of the adopted son of Sally and Cecil Reed, who were estranged and separated at this time, both sought to be named as the administrator of their son's estate. When the Probate Code appointed Cecil as administrator of the estate, Sally challenged the law in Court. The primary question this case addressed, queried: "Did the Idaho Probate Code violate the Equal Protection Clause of the Fourteenth Amendment?" (the oyez…, 1971, p. 1). The decision regarding this case was unanimous in regard to the Court's argument that giving either sex over members of the other mandatory preference simply to accomplish the elimination of hearings on the merits, makes the arbitrary legislative choice the Equal Protection Clause of the Fourteenth Amendment forbids.

Ultimately, the Court held the law's dissimilar treatment of men and women to be unconstitutional. "[T]he choice in this context," the court determined may not lawfully be mandated solely on the basis of sex." (the oyez…, 1971, p. 1)

Craig v. Boren, 429 U.S. 190 (1976)

In response to an Oklahoma law prohibiting the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18, the focus for Craig v. Boren (1976), as briefly noted in this paper's introduction, a licensed vendor, along with Curtis Craig, at the time between the ages of 18 and 21, and challenged the Oklahoma law as discriminatory. For this case, the Court considered the question: "Did an Oklahoma statute violate the Fourteenth Amendment's Equal Protection Clause by establishing different drinking ages for men and women?" ?(the oyez…, 1976, p.1). The decision merited a 7-to-2 vote.

The Court found that the Oklahoma statute did make unconstitutional gender classifications. "The Court held that the statistics relied on by the state of Oklahoma were insufficient to show a substantial relationship between the law and the maintenance of traffic safety. Generalities about the drinking habits of aggregate groups did not suffice" ?(the oyez…, 1976, p.1). In addition, the Court found that in the case the Twenty-first Amendment did not alter the application of the Equal Protection Clause. United States ex-rel Robinson v. York, 281 F. Supp. 8 (D. Conn. 1968)

In United States ex-rel Robinson v. York (1968), M. Popiel (1980) explains, the Court considered the argument the Courts had previously rejected until the late 1960's that disparate sentencing violated the equal protection clause of the Constitution.. The United States District Court for the District of Connecticut held for Robinson v. York that State statutes which mandated sex-based disparate sentencing violated the equal protection clause.

As a result of the determination regarding Robinson v. York (1968), along with the Pennsylvania Supreme Court decision regarding Commonwealth v. Daniel (1968) and the 1973 New Jersey Supreme Court following suit in State v. Chambers., statutory sentencing schemes treating men and women differently are not likely to withstand challenge . Retrieved April 3,

2009, fromStill, a broad discretionary power vested in sentencing judges and parole boards continues to exist, permitting gross and irremediable violations of equal protection. Popiel (1980) purports:

Violations are virtually invisible; only the decision itself can be scrutinized, and the means through which the decision was reached remain hidden. It is suggested that the solution to violation of the equal protection clause is to limit the discretionary power of sentencing judges and parole boards. This can be achieved by providing a mechanism to review sentencing and related decisions and by limiting the factors which may lawfully be considered. The proposed limitation demands some modification of the rehabilitative model. The judge or parole board should not be permitted to delve into every aspect of the offender's background and personality. Reviewing sentences and parole decisions, structuring discretion, and maximizing consistency through use of guidelines are recommended to improve the present system of discriminatory individualized sentencing. (Popiel, 1980, Abstract)

Liberti v. York, 28 Conn. Supp. 9, 246 a.2d 106 (S. Ct. 1968)

Barbara Allen Babcock (1975) recounts the case of Liberti v. York (1968) in Sex Discrimination and the Law: Causes. In this case, a Connecticut superior Court challenges considerations relating to a 'legitimate basis' for that state's sex-differential sentencing statute. Although the researcher invested a number of hours searching for more information regarding Liberti v. York, the researcher ultimately surmised that a dearth of information exists regarding this particular case. What the researcher surmised from the minimal retrieved literature was that in Liberti v. York, the U.S. Supreme Court held that as males convicted of the same crime could only be sentenced to a maximum of one year, while the female plaintiff's indeterminate sentences of up to three years simultaneously violated the equal protection clause. Basically, prior to Liberti v. York, women received longer prison sentences than males. The determination of Liberti v. York, albeit reportedly settled that particular problem. (***source needed here)

Estelle v. Gamble, 429 U.S. 97 (1976)

In Estelle v. Gamble (1976), he U.S. Supreme Court established framework for evaluating medical care in the prison setting with this prohibition against "deliberate indifference" to the inmates' serious illness or injury. The Court concluded that as the incarcerated inmate must rely on prison authorities to treat his/her medical needs, and if the prison authorities neglect to ensure the inmate's medical needs are met, they will not be met. The Eighth Amendment purports that the deliberate indifference to medical needs constitutes the unnecessary and wanton infliction of pain." In addition, when indifference prohibits treatment of the inmate's medical needs, it does not matter whether the prison doctor (by his/her response to the inmate's medical needs) or by the correctional officers (by intentionally denying or delaying access to medical care or intentionally interfering with the treatment once the physician recommenders it) initiates the indifference, the prison maintains the responsibility for the neglect. (Morrison, 1996).

Estelle v. Gamble relates to the medical issues available for women inside the prison systems. Although the case did not directly qualify as a woman-specific case, following its ruling, prisons began to set the guideline standards from this case as for providing adequate medical care for incarcerated women with medical conditions. The primary fact, the researcher asserts, behind this case is the fact it brought the medical attention needed to ensure the prisons provided proper medical care to prisoners who needed treatment (***). The Supreme Court's ban on cruel and unusual punishment initially intended to prevent physical mutilation and torture

Today, particularly in the context of the death penalty, cruel and unusual punishment proves to be a matter of extreme controversy (Morrison, 1996, p. 111).

Peter M. Carlson and Judith Simon Garrett (1999) report in Prison and jail administration: practice and theory, that even though the equal protection clause primarily protects members of racial minorities the clause ultimately evolved into a broad charter of equal treatment. Its current reach extends beyond race to protect aliens, women, illegitimates and other insular or discrete minorities. In the political process, these particular groups have reportedly been shortchanged throughout history." Along with other considerations relating to the rest of the Bill of Rights, albeit, its protections run only against the govern-ment. "Private acts of discrimination must be dealt with, if at all, by legislation at the federal, state or local level" (Carlson & Garrett, 1999, p. 118).

In "Moving past hippies and harassment: A historical approach to sex, appearance, and the workplace, E. Williamson (2006) reports the case of Darlene Jespersen, who tended bar at Harrah's Reno casino, approximately20 years, receiving positive reviews by both her customers and managers. In 2000, after Jespersen refused to comply with the company's new "Personal Best" program, Harrah's terminated Jespersen. One concern Jespersen protested in regard to the new policy was that each female beverage servers had to wear makeup. As no males had to comply with the new directive, Jespersen filed suit under Title VII. (4) (Williamson).