2018 marks the 150th Anniversary of the Fourteenth Amendment and Sisyphus will be doing a series examining its import. The influence of the Amendment on the controversies and interpretations of the Constitution, the Bill of Rights, and the Supreme Court is an important and complex study. In this issue, we examine the amendment’s influence on women.

“[The Fourteenth Amendment] shapes almost every issue we debate today: immigration, racial and gender equality, voter suppression, free speech, corporations and federal power. Its history destroys the notion that freedom grew steadily over time — that the founders bestowed liberty on white men, which was gradually extended to others. Rather, the amendment reinvented freedom. It established birthright citizenship, required ‘due process’ and ‘equal protection’ of the law for everyone, and put the federal government in the business of policing liberty. It removed race and ethnicity from the legal definition of American identity…

“The 14th Amendment is felt by all of us, every day. If it did not invent freedom, it transformed and strengthened it, codifying a universal definition of individual rights and national identity that has been an example to the world. But the failings of those who wrote it linger on. Many of us still have not internalized the idea that an American can look like anyone in the world. Whoever calls the police on a peaceful, unarmed black or brown person is acting in a long, grim tradition. Complaints about the immigration of Muslims, Latin Americans or people from ‘shithole countries’ restate the original arguments against the 14th as opening the doors to ‘heathens’ and ‘pagans.’ Even debates over the intrusiveness of the federal government and the rights of corporations are rooted in the amendment that forever altered Washington’s role in American life.” says Pulitzer Prizewinning Author T.J. Stiles in an OpEd for the New York Times.

“As T.J. Stiles notes, the 14th Amendment was a much-needed response to a racist backlash in the aftermath of emancipation from slavery. It also marks the first time the word “male” was introduced into the Constitution, in the context of voting rights. It took another constitutional amendment, more than 50 years later, for women to get the right to vote.

“While in recent years the 14th Amendment has been expanded by the Supreme Court to give women, as well as men, far greater protection from sex discrimination, it has not been an effective avenue to justice for women suffering from unequal treatment, including pay inequity, pregnancy discrimination and gender-based violence.

“Women were intentionally left out of the Constitution when it was drafted, and the resulting second-class status of women has given rise to a culture in which the abusive treatment of women has been allowed and enabled.

“The Equal Rights Amendment, first introduced almost a hundred years ago, is now again gaining traction with recent state ratifications by Nevada and Illinois and with the wave of protest engendered by the #MeToo movement.

The Equal Rights Amendment is long overdue and a fitting constitutional response,” responds Jessica Neuwirth. Neuwirth is the founder and co-president of the E.R.A. Coalition, and the author of Equal Means Equal: Why the Time for an Equal Rights Amendment Is Now.

The 14th Amendment to the U.S. Constitution, ratified in 1868, granted citizenship to all persons born or naturalized in the United States— including former slaves—and guaranteed all citizens “equal protection of the laws.” One of three amendments passed during the Reconstruction era to abolish slavery and establish civil and legal rights for black Americans, it would become the basis for many landmark Supreme Court decisions over the years.

The Thirteenth Amendment (banning slavery), the Fourteenth Amendment, and the Fifteenth Amendment (ensuring the right to vote) did not, however, support equal rights under the law because, for the first time, the word “male” was inserted into the language of the Constitution. The Fifteenth Amendment States:  “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 race, color, or previous condition of servitude.” It did not, however, include women as citizens.

However, the Women’s Rights Movement in the United States began in the early 19^th century. Many of its supporters were Union abolitionists supporting the Civil War to bring an end to slavery, fully expecting to return to the cause after the war and they were outraged by the Civil War Amendments because of the obvious language favoring male voters. They lobbied, without success, for a suffragette amendment and movement spilt the factions of the suffragettes and the abolitionists in the Women’s Rights Movement. Women would not get the vote until Congress passed the 19^th Amendment in 1920, another 52 years.

Below we outline some of the most important Supreme Court decisions for women that are based on the interpretation of the Fourteenth Amendment.

Bradwell v. Illinois (1869) Myra Colby Bradwell (February 12, 1831 – February 14, 1894) was a pioneer woman lawyer, the first woman in the United States to practice law, author of legislation for women’s rights; first woman member of the Illinois Bar Association; and founding member of the Illinois Woman’s Press Association, the oldest organization of professional women writers.

Bradwell formed the American Women’s Suffrage Movement with Lucy Sone, Julia Ward Howe, and Frederick Douglass. In 1868, Bradwell formed the Chicago Legal News as editor and business manager. She advocated for married women’s property rights and drafted laws protecting women’s earnings and the protection of widows.

In 1869, she passed the bar with high honors only to be denied a license. The Illinois Supreme Court found her to be “disabled” as a married woman, because she did not have separate legal existence outside of her marriage and was unable enter into contracts (femme covert law). In 1872, she appealed the lower court decision (a rehearing found simply that she was disqualified for being a woman) to the United States Supreme Court. The United States Supreme Court upheld the decision.

U.S. v. Anthony (1873) Susan Brownwell Anthony (February 15, 1820 – March 13, 1906) was an activist, reformer, teacher, and lecturer and key spokesperson and founder of the Equal Rights Association (1866) and editor and publisher of the Revolution. Anthony co-founded (with Elizabeth Cady Stanton) the National Woman Suffrage Association.

In 1872, Susan B. Anthony cast a vote in New York in the Presidential election, claiming that the first clause of the Fourteenth Amendment already permitted women the vote. She said, “We no longer petition legislature or Congress to give us the right to vote, but appeal to women everywhere to exercise their too long neglected ‘citizen’s right’.” She was arrested (along with 15 others), tried in the United States District Court, found guilty, and fined $100. She refused to pay.

Minor v. Happersett (1874) Virginia Louisa Minor (March 27, 1824 – August 14, 1894) supported the Union effort in the Civil War. After the war, Minor became involved in the woman’s suffrage movement and founded the first organization in the United States dedicated to the single issue of women’s voting rights.

In October 1872, Minor attempted to register to vote in Missouri. The registrar, Reese Happersett, turned her down. Claiming her rights were violated, her husband Francis Minor sued in the Missouri Supreme Court (because of the femme covert law, Virginia Minor could not sue on her own behalf). The Minors’ brief argued that, “There can be no half-way citizenship. Woman, as a citizen in the United States, is entitled to all the benefits of that position, and liable to all its obligations, or to none.”

The US Supreme Court, in an unanimous opinion written by the Chief Justice Morrison Waite, found:

• women are citizens of the United States, and were even before the Fourteenth Amendment passed
• the right of suffrage — the right to vote — is not a “necessary privilege and immunity” to which all citizens are entitled
• the Fourteenth Amendment did not add the right of suffrage to citizenship privileges
• the Fifteenth Amendment was required to be sure voting rights were not “denied or abridged … on account of race, color, or previous condition of servitude” — in other words, the amendment was not necessary if citizenship conferred voting rights
• women’s suffrage was explicitly excluded in nearly every state either in the constitution or in its legal code; no state had been excluded from joining the Union for lack of women’s voting rights, including states re-entering the Union after the Civil War, with newly written constitutions
• the US had made no objection when New Jersey explicitly withdrew women’s suffrage rights in 1807
• arguments about the need for women’s suffrage were irrelevant to their decisions

Reed v.  Reed (1971) Separated couple Sally and Cecil Reed’s adopted son committed suicide without a will and with an estate of less than $1000. Both filed petitions seeking appointment of the son’s estate.

According to Idaho Code 15-312, the classes of persons “entitled to administer the estate of one who dies intestate” in order of preference are: 1. Surviving spouse 2. Children 3. Father or mother 4. brothers 5. sisters, etc. Idaho Code 15-314 states that if there are several people equally entitled, then “males must be preferred to females and relatives of the whole to those of the half blood.”

In 1971, Reed v. Reed became the first U.S. Supreme Court case to declare sex discrimination a violation of the 14^th Amendment. 

In the Reed v. Reed opinion, Chief Justice Warren Burger wrote that “the Idaho Code cannot stand in the face of the 14th Amendment’s command that no State deny the equal protection of the laws to any person within its jurisdiction.”  The decision was without dissent.

ERA feminists noted that it took more than a century for the United States Supreme Court to recognize the Fourteenth Amendment in support of Women’s Rights. One of the lawyers for the appellant, Ruth Bader Ginsburg, called it a “turning point case.”

Roe v. Wade (1973) Norma Nelson was high school dropout from Texas who met and married Elwood McCorvey at the age of 16. The child from their union was raised by her mother. Her second child was raised by the father of the child. Her third pregnancy landed her as the plaintiff in one of the most famous United States Supreme Court decisions of the twentieth century. 

Her participation in the case was orchestrated by her lawyers, Sarah Weddington and Linda Coffee. They were looking for a woman who wanted an abortion but couldn’t obtain one. At the time, abortion was illegal in Texas and “Jane Roe” did not have the financial ability to travel to another state.

The United States Supreme Court ruled 7-2 in favor of Roe. The Court based its decision on the First, Fourth, Ninth, and Fourteenth Amendments.  Past decisions in family law were protected under the implicit right to privacy in the Bill of Rights but Roe v Wade was primarily determined on the due process clause of the Fourteenth Amendment. The case is a turning point in women’s reproductive rights.

Data from History.com & ThoughtCo

AMENDMENT XIV

SECTION 1

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

SECTION 2

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

SECTION 3

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

SECTION 4

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

SECTION 5

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Further discussion of the Fourteenth Amendment will be in Issue 5.4: Inequality.