Sex Discrimination

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 »

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.” Read more »

About a year ago, Justice Scalia was asked whether the Fourteenth Amendment, which prohibits the government from denying the equal protection of the laws, applies to sex discrimination. (Hint: in decades of jurisprudence, the Supreme Court has said that it does.) His answer was shocking. He said:

“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.” Read more »