Skip to contentNational Women's Law Center

Equal Protection Clause

For Equal Pay Day NWLC Releases Materials Providing Fresh Insight into the Wage Gap

April 9 is Equal Pay Day –the day more than three months into the year when women’s wages finally catch up to what men were paid in the previous year. In “honor” of the occasion National Women’s Law Center is releasing fresh data and analysis on the persistent wage gap between men and women.

This is also a big birthday year – something actually worth celebrating – the Equal Pay Act turns 50 in June! But on the eve of that happy occasion, here’s another downer: As reported in The Wage Gap by State for Women Overall, 50 years in, the wage gap is still going strong all across the U.S.

Since 1963, when the Equal Pay Act became law, we’ve narrowed the wage gap by only 18 cents, and in the last ten years that gap hasn’t closed at all. For the last decade, the median annual earnings of women have lagged behind men – women working full time, year round have made roughly 77 cents for every dollar made by men working full time, year round. We’ve still got a whopping 23 cents to go before we close the wage gap. Even if the wheels of progress were to start turning again today, if we only close the gap another 18 cents in the next 50 years, we’ve got 64 years before the wage gap closes. Read more »

Sixth Circuit Strikes Down Michigan’s Ban on Affirmative Action

Yesterday, in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, the Sixth Circuit by a vote of 8-7 struck down an amendment to Michigan’s Constitution prohibiting affirmative action, holding that it violated the federal Equal Protection Cause. As a result, the Sixth Circuit found that the admissions policies of Michigan’s public universities, which up until the amendment had used race as a “plus factor,” were permissible under state law.

The Michigan amendment prohibited any consideration of race, gender, and certain other factors, in admissions to public universities, including the individualized admissions practices that give some weight to race that the Supreme Court found constitutional in Grutter v. Bollinger. Yesterday’s majority did not discuss the benefits of race-conscious admissions lauded by the Supreme Court in Grutter, which proclaimed diversity in higher education was a compelling state interest. It also did not address the effect that the prohibition on gender-conscious affirmative action would have on women seeking admission to traditionally male-dominated fields of study like engineering. Rather, the Sixth Circuit’s decision centered on the inequalities that the state amendment introduced into the political process for racial minorities. Read more »

Update: Another Federal Trial Court Rules DOMA Unconstitutional

Following on the heels of Northern District of California Judge Jeffrey White's ruling in Golinski v. OPM in February and the First Circuit's decision in Gill last week, yesterday, a judge on the Southern District of New York ruled in Windsor v. OPM that Section 3 of the federal Defense of Marriage Act (DOMA), which defines marriage for the purposes of federal law as between one man and one woman, violates the Equal Protection Clause of the Constitution.

Like those other decisions (as well as Perry v. Brown in the Ninth Circuit, which considered California's state constitutional ban on same-sex marriage), the Windsor decision does not adopt heightened constitutional scrutiny, but nonetheless concludes that DOMA does not satisfy the more searching rationality review appropriate in cases that do not involve routine economic regulations. This is notable because Windsor is the first DOMA challenge in a jurisdiction where the governing circuit court had not previously decided whether or not heightened scrutiny applies to laws that discriminate against LGBT individuals (and indeed, Windsor is one of the cases whose filing prompted Attorney General Holder's February 2011 memo stating that the Department of Justice would no longer defend DOMA's constitutionality). Read more »

Last Week DOMA, This Week Prop 8: Thoughts on What's Next

Last week, the First Circuit Court of Appeals ruled that the federal Defense of Marriage Act (DOMA), which defines marriage for all purposes under federal law as between one man and one woman, violates the U.S. Constitution. And yesterday, the Ninth Circuit announced that it would not review en banc the panel decision in Perry v. Brown, which held that California's constitutional amendment banning same-sex marriage violates the federal Constitution's Equal Protection Clause. The First Circuit's decision last week paired with the Ninth Circuit's decision not to further review Perry raises the possibility that the Supreme Court may weigh in on questions of marriage equality under the Constitution sooner rather than later.

The First Circuit's decision is the first time a federal court of appeals has held that DOMA is unconstitutional. (The National Women's Law Center joined a friend-of-the-court brief arguing that DOMA violated the Equal Protection Clause.) The First Circuit's ruling was issued in two consolidated cases. In Gill v. Massachusetts, same-sex couples married under state law argued that Section 3 of DOMA violated the Equal Protection Clause by preventing same-sex spouses of federal employees from receiving the same spousal benefits as opposite-sex spouses; and in Massachusetts v. Department of Health and Human Services, the commonwealth of Massachusetts argued that this section of DOMA was invalid under the Tenth Amendment and the Spending Clause because federal funding for specific programs was premised on denying benefits to same-sex married couples. In 2010, a Massachusetts district court had ruled that Section 3 of DOMA was unconstitutional in both cases. Read more »

A Huge Legal Win for Transgender Rights, But Legislation is Still Needed

Last week, a federal appeals court in Georgia with a conservative reputation ruled in the strongest terms that “[a]n individual cannot be punished because of his or her gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual.”

In 2007, Vandy Elizabeth Glenn (who at that time went by Glenn Morrison) told her boss at the Georgia General Assembly’s Office of Legislative Counsel that she was planning on transitioning from male to female. He promptly fired her, after remarking that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” and describing a male in women’s clothing as “unnatural.”

In a unanimous opinion written by Judge Rosemary Barkett, the court held that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex discrimination under the Equal Protection Clause” of the Fourteenth Amendment to the U.S. Constitution, and that “discrimination against a transgender individual because of her gender nonconformity is sex discrimination.”

This case is a huge step forward for LGBT rights—it will force many employers to think twice before they fire transgender workers for discriminatory reasons. And it sends a message to transgender men and women that they are legally protected from sex discrimination in the workplace. It also reaffirms the continuing importance of the Equal Protection Clause’s protection against discrimination on the basis of gender stereotypes today. Read more »

Reed v. Reed Advances Equality for Women, but Must Always Be Defended

Forty years ago today, for the first time in its history, the Supreme Court held that a law that discriminated against women violated the Constitution. In Reed v. Reed, a unanimous Court struck down an Idaho law requiring the automatic preference of a man over a woman when both applied to be the executor of an estate. The Court recognized that women had a constitutional right to equal protection of the law, turning from a long list of previous rulings that allowed women to be excluded from juries, or the legal profession, or even bartending, on the grounds that women needed to be protected from the rough-and-tumble of the workplace or the public square, or confined to the sphere of hearth and home. The Court’s ruling was spurred by the advocacy of Ruth Bader Ginsburg, who authored Sally Reed’s Supreme Court brief and whose efforts in that case and in a series of groundbreaking Supreme Court cases in the years that followed established constitutional protection against discrimination on the basis of sex. Forty years ago today, the Supreme Court’s decision also gave new constitutional underpinnings to the statutory protections against sex discrimination in employment and an impetus and strength to an array of new statutory protections against discrimination in education, credit, and housing, as well as employment, in the years that followed. That work continues. Most recently, there is a new protection against sex discrimination in federally-funded health care, as part of the Affordable Care Act, closing yet one more gap in legal protection against discrimination women are still fighting to secure. Read more »

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. Read more »

Reed v. Reed at 40: Equal Protection and Women’s Rights: Allen Derr Joins Panel Audience

We’re excited to have Allen Derr, attorney who argued for Sally Reed in the landmark Reed v Reed case, joining the audience tomorrow for a special panel to mark the 40th anniversary of the case. The panel will be discussing the past and future of women’s legal rights under the Equal Protection Clause and you can register to join the live webcast here:

You can learn more about the Reed v Reed case here and also, read an article from the Idaho Statesman about Mr. Derr coming to Washington, D.C. for the event: Read more »

Reed v. Reed at 40: A Landmark Decision

In 1971, the United States Supreme Court invalidated an Idaho law that required the selection of a man over a woman to serve as administrator of an estate when both were equally qualified.  The landmark Reed v. Reed decision, 404 U.S. 71 (1971), marked the first time in history that the Court applied the Equal Protection Clause of the Fourteenth Amendment to strike down a law that discriminated against women.

Background of the Reed v. Reed Case

The woman who challenged Idaho’s discriminatory statute was Sally Reed, a single mother who earned a living by caring for disabled people in her home.  The case began when her teenage son Skip died tragically. According to Sally, her ex-husband, Cecil Reed, was an abusive husband and father who deserted the family when their son was only three or four years old. After their divorce, Sally raised Skip during his “tender years,” but Cecil was awarded partial custody of Skip when he reached his teens.  During one of his visits, Skip was found dead in his father’s basement, having apparently shot himself with his father’s rifle. Skip’s death was determined a suicide, but Sally was suspicious because Cecil had taken out a life insurance policy on the boy.  Because Skip had died without a will, Sally filed a petition to be appointed administrator of his estate, which consisted of only $495 and a few personal belongings. Cecil Reed put in a rival application. Read more »

It’s hard to believe some of the discrimination that women used to face!

Only forty years ago, numerous federal and state laws treated men and women differently, to women’s grave disadvantage. It was not until Reed v. Reed, 404 U.S. 71 (1971), the landmark case decided forty years ago this month, that the Supreme Court began to strike down discriminatory laws and policies on the ground that they denied women – and men- the Equal Protection of the law that is guaranteed by the Fourteenth Amendment to the Constitution.

In the decision in a case entitled Frontiero v. Richardson, 431 U.S. 677 (1973), Justice Brennan wrote that “There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.” He went on to say that “throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children.”  

In the 20th century – in 1920 – women finally got the right to vote, but many discriminatory laws remained on the books, and new social programs of the states and the federal government contained discriminatory provisions based on stereotypes about women’s role in the family and in society.

Here are some of the laws and policies that put women “in a cage” that were struck down by the Supreme Court in the forty years that followed Reed: Read more »