Women's Rights Cases: Gender, Law, and Equal Protection

Introduction: Rights of Women Tried

"Woman, as a human being, has rights — the inevitable conclusion of the then new philosophical theory."
— Mary Wollstonecraft (Wollstonecraft & Pennell, 1891, p. viii)

In 1891, more than one hundred years ago, after Mary Wollstonecraft published A Vindication of the Rights of Woman, Horace Walpole — like many others of his era — denounced her as a social outcast. Walpole "politely called" Wollstonecraft a "hyena in petticoats" and a "philosophising serpent" (Wollstonecraft & Pennell, 1891, p. vii). Wollstonecraft (1891) asserted that woman, as a human being, has rights. This research paper examines a number of women's rights and how women achieved some of their current legal protections through the United States justice system. As this study considers numerous contemporary legal constraints that women have previously encountered, the researcher also reflects on five cases linked to legal rights for women. In conclusion, the researcher presents observations on women's legal rights that have yet to be achieved and asserts that these rights need to be 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 Idaho Probate Code's specification that "males must be preferred to females" in the appointment of administrators of estates, the Court in Reed v. Reed ruled that the dissimilar treatment of men and women under the law was unconstitutional (The Oyez Project, 1971).

2. Craig v. Boren, 429 U.S. 190 (1976): Curtis Craig, a male 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 Project, 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): The Court determined that sex-based disparate sentencing did, in fact, violate the Equal Protection Clause of the Constitution — a conclusion that had been uniformly rejected by the courts prior to the late 1960s (Popiel, 1980).

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

5. Estelle v. Gamble, 429 U.S. 97 (1976): This case addressed medical care in the prison setting. The Supreme Court established that prison authorities must not exhibit "deliberate indifference" to an inmate's serious illness or injury (Morrison, 1996, pp. 100–101).

The Bill of Rights and Women's Legal Protections

In Fundamentals of American Law, Alan B. Morrison (1996) recounts that in the twentieth century, the Bill of Rights' protections were expanded when the Nineteenth Amendment (1919) assured women of the right to vote. In 1787, primarily because the United States accepted the moral failings of slavery and the subordination of women, the original Bill of Rights did not address equality concerns (Morrison, p. 111).

The protections the contemporary Bill of Rights offers are broad, Morrison notes, but they have boundaries. Standing alone, the Bill of Rights does not protect individuals from the misuse of private power. Morrison observes 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 ten amendments — codifies 31 specific protections, 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 arms (2nd); 8. No quartering of troops (3rd); 9. No unreasonable searches (4th); 10. No unreasonable seizures (4th); 11. Necessity of warrant on probable cause (4th); 12. Specificity of warrant (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, or 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 confrontation (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. No cruel and unusual punishments (8th); 30. Enumerated rights do not preclude other rights (9th); 31. Powers not delegated to the national government are reserved to the states and the people (10th) (Morrison, 1996, p. 85).

After the U.S. Supreme Court adopted the Fourteenth Amendment, it endeavored to prevent racial minorities from being excluded from jury service. More recently, the Supreme Court invalidated state rules that kept women from serving on juries (Morrison, 1996, p. 110).

Due to the increasing presence of women and minorities, the composition of the legal profession has changed considerably over time. In 1963, only 3.7% of the approximately 47,000 law students enrolled in the 135 American Bar Association–accredited law schools were women. By 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

Morrison (1996) explains that a judge is instructed to refrain from any semblance of impropriety in his or her activities. One important point: the 1990 (but not the 1972) Code of Judicial Conduct prohibits judges from joining organizations — including clubs — that practice "invidious" discrimination based on a person's race, sex, religion, or national origin. An organization discriminates invidiously, Morrison points out, if it specifically and arbitrarily excludes minorities, women, or others (Morrison, 1996). U.S. law expressly relates to the enforcement of equal treatment in the courtroom, as the 1990 Code instructs judges 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, or socioeconomic status, against parties, witnesses, counsel, or others" (Morrison, p. 174).

Considerations Concerning the Five 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 (Lewis, 2009, ¶ 15)

Not until July 1848, at the Seneca Falls Woman's Rights Convention organized by Elizabeth Cady Stanton and Lucretia Mott, were votes for women first seriously proposed in the United States. Charlotte Woodward, one attendee of the 1848 convention, was nineteen years old at the time. Seventy years later, in 1920, when women won the right to vote, Woodward — the only surviving participant of the 1848 Convention — cast her vote at the age of eighty-one (Lewis, 2009). The point Wollstonecraft (1891) made during her lifetime — that woman, as a human being, possesses particular rights — was one that Wollstonecraft, Woodward, and others knew would frequently encounter legal challenges.

In "Transforming Society through Law: St. George Tucker, Women's Property Rights, and an Active Republican Judiciary," M. D. McGarvie (2006) 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). During this period, most of society relied on patriarchal authority — primarily male — and prescribed roles, behaviors, and attitudes 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 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 notes that the first women's rights case the United States Supreme Court ruled on was Bradwell v. Illinois, the 1873 case that initially challenged a sex classification as a violation of the Fourteenth Amendment. In that 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 in Bradwell v. Illinois:

"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 as 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." (Gibson, 2007, Background to Muller v. Oregon section, ¶ 3)

Bradwell v. Illinois (1873) constitutes the first case in a long line of decisions that denied women protection against sex discrimination. This study examines five cases from that historical line, as noted in the introduction:

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)

Conclusion: Women's Rights Past and Future

"The law changes and flows like water, and … the stream of women's rights law has become a sudden rushing torrent."
— Shana Alexander (Simpson's Contemporary Quotations, 1988)

Each day in the U.S., according to Fulkerson and Patterson (2006), thousands of women experience human rights violations. These gender-based violence violations affect women at alarming rates and include sexual harassment, stalking, sexual violence, and domestic violence. "Gender-based violence is a violation of women's human rights and a form of discrimination that prevents women from participating fully in society and fulfilling their potential as human beings" (Fulkerson & Patterson, 2006, Women's rights section, ¶ 1). Not only do abusers compromise women's human rights — those responsible for protecting and providing services to women may also abuse women, Fulkerson and Patterson (2006) stress.

As this research paper examined five specific cases, it traced how women achieved some of their current legal rights through the U.S. justice system. The researcher also addressed numerous contemporary legal constraints that women have previously encountered. The five cases reviewed were:

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)

More than one hundred years after Mary Wollstonecraft published A Vindication of the Rights of Woman, remembrances of a time when women like her were denounced as social outcasts — called a "hyena in petticoats" and a "philosophising serpent" (Wollstonecraft & Pennell, 1891, p. vii) — may eventually fade. The remembrance that a woman is a human being, and that she has rights, the researcher contends, will stand the test of time.

References

Babcock, Barbara Allen. (1975). Sex Discrimination and the Law: Causes. Retrieved April 3, 2009, from Google Books.

Carlson, Peter M., & Garrett, Judith Simon. (1999). Prison and jail administration: Practice and theory. Jones & Bartlett Publishers.

The Columbia World of Quotations. (1996). Columbia University Press. New York.

Cowan, J. K. (2007). Human rights and gender violence: Translating international law into local justice. Journal of the Royal Anthropological Institute, 13(2), 495+.

Fulkerson, A., & Patterson, S. L. (2006). Victimless prosecution of domestic violence in the wake of Crawford v. Washington. Retrieved April 1, 2009, from Questia database.

Gibson, K. L. (2007). Judicial rhetoric and women's place: The United States Supreme Court's Darwinian defense of separate spheres. Western Journal of Communication, 71(2), 159+.

Lewis, Jone Johnson. (2009). August 26, 1920: The day the suffrage battle was won. Women's History, About.com.

McGarvie, M. D. (2006). Transforming society through law: St. George Tucker, women's property rights, and an active Republican judiciary. William and Mary Law Review, 47(4), 1393+.

Morrison, Alan B. (1996). Fundamentals of American law. Oxford University Press.

Popiel, M. (1980). NCJRS Abstract. Retrieved April 5, 2009, from

The Oyez Project. (1976). Craig v. Boren, 429 U.S. 190. Retrieved March 31, 2009, from http://oyez.org/cases/1970-1979/1976/1976_75_628

The Oyez Project. (1971). Reed v. Reed, 404 U.S. 71. Retrieved March 31, 2009, from http://oyez.org/cases/1970-1979/1971/1971_70_4

Simpson, James B., comp. (1988). Simpson's Contemporary Quotations. Houghton Mifflin.

Williamson, E. (2006). Moving past hippies and harassment: A historical approach to sex, appearance, and the workplace. Duke Law Journal, 56(2), 681+.

Wollstonecraft, Mary, & Pennell, Elizabeth Robins. (1891). A vindication of the rights of woman. Walter Scott.

Women's Equality Day. (2002). Presidential Press. Retrieved April 5, 2009.