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Reed v. Reed Reminds Us What’s At Stake for Women in Constitutional Fights

Happy anniversary! Forty years ago today, the Supreme Court ruled for the first time in history that a law that discriminated against women violated the Constitution. Reed v. Reed was the first in a series of path-breaking cases that established that the Constitution does not permit government to discriminate on the basis of sex unless it can prove it has an exceedingly persuasive justification for doing so. Today let’s start giving thanks a few days early and celebrate the cases that recognized that women are among those persons who may not be denied equal protection of the law under the Fourteenth Amendment.

But while these victories merit celebration, today it is also important to remember that women still have much at stake in current arguments about the Constitution and its meaning. For example, a week ago, the Supreme Court agreed to consider whether the Affordable Care Act’s expansion of Medicaid and individual responsibility provision are constitutional. The answers to these questions will determine the fate of the Affordable Care Act-- legislation of tremendous importance to women’s health. The Court’s decision may also affect other laws upon which women depend. If the Court holds that the Constitution does not permit Congress to require individuals to obtain health insurance when they prefer not to enter into such an economic transaction, it could open the door to arguments that the Constitution also does not permit Congress to (for example) require banks to give loans to women as well as men, even if the bank prefers not to enter into economic transaction with a women, or require employers to consider female applicants as well as male applicants for a position, if the employer prefers not to enter into economic relationships with women. If the Court hold that the Medicaid expansion is unconstitutional because it is coercive to tell states that they can only receive federal funds on which state budgets depend so long as they agree to certain conditions on how those funds are spent, will it call into question whether it is constitutional for Congress to tell states that if they accept federal funding, they must agree not to discriminate on the basis of sex in their educational programs and activities, as Title IX requires?

Last week saw another constitutional conversation of crucial importance to women when the House voted on a Balanced Budget Amendment, a constitutional change that would force major cuts to programs that women and families depend on--at the very moment that economic times get tough. The Amendment did not garner the two-thirds vote necessary for approval, but this is likely not the last time we will hear of such a proposal.

Even the protections against sex discrimination provided by the Equal Protection Clause have been recently called into question by Justice Scalia, and just last term the Supreme Court tied four-four in a sex discrimination case under the Constitution, which had the effect of allowing a law that discriminated on the basis of sex in awarding U.S. citizenship to survive.  Celebrate the fortieth anniversary of Reed v. Reed by remembering much the Constitution means for women and the work that remains to be done to ensure that the Constitution continues to be a powerful guarantee of women’s equality.