Civil Rights for Women and LGBTQ LESSON 13 Civil Rights for Women and LGBTQ 1

The Constitution and Inequality Equality is not in the original Constitution. First mention of equality in the 14th Amendment: forbids states to deny to any person “…equal protection of the laws”

EQUALITY Civil rights are the constitutional rights of all persons, not just citizens, to due process and the equal protection of the laws: the constitutional right not to be discriminated against by governments or individuals because of race, ethnic background, religion, or gender. 5

WOMEN’S RIGHTS First feminist wave Struggle for suffrage – 19th Amendment, 1920 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 sex. Congress shall have power to enforce this article by appropriate legislation. 6

WOMEN’S RIGHTS Second feminist wave: 1960-present Rise of National Organization for Women (NOW), 1966 – dedicated to women’s rights Title IX of Education Act of 1972 prohibited gender discrimination in federally subsidized education programs, including athletics 7

National Organization of Women As the grassroots arm of the women’s movement, the National Organization for Women is dedicated to its multi-issue and multi-strategy approach to women’s rights, and is the largest organization of feminist grassroots activists in the United States. NOW has hundreds of chapters and hundreds of thousands of members and activists in all 50 states and the District of Columbia. Since our founding in 1966, NOW’s purpose is to take action through intersectional grassroots activism to promote feminist ideals, lead societal change, eliminate discrimination, and achieve and protect the equal rights of all women and girls in all aspects of social, political, and economic life.

PRIVACY RIGHTS - ABORTION Fundamental rights are those which are explicitly in the Constitution (Bill of Rights) Such rights also include those which are implicitly in the Constitution (travel, political association, privacy – Griswold v. Connecticut, 1965). Abortion Cases: Prior to 1973: states set own abortion policies. Roe v. Wade, 1973: established trimester guidelines. Based upon right of privacy implied in Bill of Rights. – Planned Parenthood v. Casey, 1992: somewhat defined that leeway: states cannot impose an “undue burden” on a women’s right to an abortion. 11

Is There a Right to Privacy in the Constitution? Definition: the right to a private personal life free from the intrusion of government Not explicitly stated in the Constitution, but implied through the penumbras (implied rights) of the Bill of Rights Supreme Court agrees that a right to privacy exist Griswold v. Connecticut (1965) Overturned an 1879 Connecticut law that made the contraceptives illegal to married couples

“Privacy” isn’t specifically mentioned in the Constitution but guarantees in the 1st, 3rd, 4th, and 5th Amendments create a zone of privacy that is protected by the 9th Amendment. 4 5 9 4 3 1

Roe v. Wade (1973) Issue: Does the U.S. Constitution protect the right of a woman to obtain an abortion? Majority: In a 7–2 decision, the U.S. Supreme Court decided in Roe’s favor. Justice Blackmun wrote the opinion of the Court, which recognized that a woman’s choice whether to have an abortion is protected by the Constitution. The majority rooted a woman’s right to decide whether to have an abortion in the Due Process Clause of the 14th Amendment, which prohibits states from “depriv[ing] any person of … liberty … without due process of law.” According to the majority, the “liberty” protected by the 14th Amendment includes a fundamental right to privacy. The majority began by surveying the history of abortion laws, and concluded that “the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage,” and “are not of ancient or even of common- law origin.” The Court then held that “[t]his right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 1st trimester abortions are allowed 2nd trimester abortions can be restricted, but not prohibited by the state 3rd trimester abortions can be regulated or prohibit abortions except when medical judgment determines that an abortion is necessary to save a woman’s life

PRIVACY RIGHTS - HOMOSEXUALS Obergefell v. Hodges (2015) – Same-sex couples right to marry is protected by the due process clause and the equal protection clause of the 14th Amendment Most effective way to secure rights has been through litigation in the courts to gain protections against discrimination 18

Obergefell v. Hodges (2015) The Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples. Court also held that the First Amendment protects the rights of religious organizations to adhere to their principles, but it does not allow states to deny same-sex couples the right to marry on the same terms as those of opposite-sex couples. Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the constitutionality of states’ bans on same- sex marriage or refusal to recognize legal same-sex marriages occurred in jurisdictions that provided for such marriages.

THE AFFIRMATIVE ACTION CONTROVERSY Affirmative action - policies requiring special efforts in employment, promotion, or school admissions on behalf of disadvantaged groups The goal of affirmative action is to move beyond equal opportunity toward equal results. Some groups have claimed that affirmative action programs constitute “reverse discrimination.” Constitutionality of affirmative action programs University of California Regents v. Bakke (1978) Quotas cannot be used for admissions (cannot reserve seats for racial minority groups) Affirmative action programs are not necessarily unconstitutional Reaffirming the Importance of Diversity Gratz v. Bollinger (2003) – race cannot be used as a “bonus” point Grutter v. Bollinger (2003) – race can be one of the factors to be considered in admissions 22

Regents of the University of California v. Bakke (1978) UC Davis Medical School desired to produce more minority doctors so they set aside 16 (out of 100) places in the entering class for members of disadvantaged groups Alan Bakke, a white applicant, was repeatedly deferred even though his MCAT scores were substantially higher than most of the minority applicants who were accepted Affirmative Action laws are not unconstitutional, but quotas in college admissions are unconstitutional. The Court said the university could use race as one element in admissions.

Is Affirmative Action the same thing as Quotas? Some, but not all, Affirmative Action programs use quotas Quotas require that a certain number or percentage of a disadvantaged group get a job For example, if it is proven that a police force actively discriminated against hiring minority officers, a quota may be used to correct past discrimination