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Romney Advisor Robert Bork: The Equal Protection Clause Doesn’t Protect Against Sex Discrimination, Which Doesn’t Exist Anyway

Law professor Robert Bork has signed on as co-chairman of GOP presidential candidate Mitt Romney’s “Justice Advisory Committee.” According to Bork, a former federal judge and failed Supreme Court nominee, “I’d like to be asked a question now and then for advice.”

So, what kind of advice will Bork, known for his staunchly outlier positions, offer? Well, in addition to his opposition to the constitutional right to privacy and his very limited view of the protection of the First Amendment, Bork takes an extreme stance on the Fourteenth Amendment: he believes the Equal Protection Clause should not apply to women. (Even Justice Scalia recently walked back a similar view.) As Bork explained to Newsweek:

“I think I feel justified [in taking that position] by the fact ever since [the Court held that it applies to women], the Equal Protection Clause kept expanding in ways that cannot be justified historically, grammatically, or any other way. Women are a majority of the population now—a majority in university classrooms and a majority in all kinds of contexts. It seems to me silly to say, ‘Gee, they’re discriminated against and we need to do something about it.’ They aren’t discriminated against anymore.”

As others have noted, Bork’s statement that discrimination against women no longer exists is simply ridiculous. Yes, decades of pioneering women have made progress in the fight for equality, and for that, we are grateful. But those victories are a far cry from actually eradicating discrimination. Indeed, for proof that discrimination against women is alive and well, one need only look to the persistent sex discrimination that women face in the employment context, including lower wages, discriminatory promotion policies, and pregnancy discrimination, as well as to the discrimination that girls continue to face in our schools, whether with regard to the lack of opportunity for women and girls in career and technical education, harassment in the classroom, discrimination against pregnant or parenting students, or unequal opportunities in athletics. Bork’s willful blindness to the world around him is startling.

What’s equally amazing about Bork’s statement is that many of the gains women have made in fighting against sex discrimination are a direct result of the Supreme Court’s application of the Equal Protection Clause to women. Because of the Court’s jurisprudence, women cannot be excluded from juries based upon their sex, women are not automatically considered financially dependent on men for purposes of government benefits, and women have equal control of marital property, just to name a few areas where discriminatory laws were successfully challenged. Incidentally, the Equal Protection’s guarantee against sex discrimination has also benefited men – by striking down laws prohibiting men from enrolling in state-funded schools and laws providing federal benefits to women caring for minor children, but not men, just to name a few. If the Equal Protection Clause were not applied to eliminate all forms of sex discrimination, discriminatory laws like these could still exist today.

It’s disturbing that an individual with unreasonably limited views of the constitutional protections available to women continues to play an influential role in discussions about the meaning of the Constitution. Professor Bork‘s musings should remind us of how far we’ve come—and of how far we have left to go.

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