Civil Rights II: Other Protected Minorities Part I: Women’s right to vote Paul E. Peterson

“But when the right to vote at any election… is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States…” Fourteenth Amendment  Elizabeth Stanton advocated to strike the word “male” from the provision. Congress ignored her request. Elizabeth Stanton (left) and Susan B. Anthony (right)

Minor v. Happersett (1875)  Virginia Minor tried to register to vote in Missouri, barred because she was a woman  Went to Court, with assistance of husband – she had no standing in Court  Argued that denial of the right to vote was denial of equal protection  Supreme Court: No, women can’t vote. That was dominant view of the time Virginia Minor

The Awakening by Henry Mayer (1915)

States Granting Women's Suffrage before 19th Amendment in 1920 STATEYEAR SUFFRAGE GRANTED VOTES IN E.C. % OF TOTAL E.C. VOTE WY189031% CO ID1896 UT WA CA AZ1912 KS1912 OR IL MT1914 NV

19 th Amendment (1920) “The right of citizens of the United States to vote shall not be denied… on account of sex.”

Women’s right to vote: takeaways  No one Supreme Court decision gave women suffrage  Instead, women gradually gained political power and eventually were able to exact change  Many parallels to the story of African Americans gaining the vote

Civil Rights II: Other Protected Minorities Part II: Civil rights of women Paul E. Peterson

Supreme Court did little for women’s rights  Distinctions and discrimination based on gender were common Goesaert v. Cleary (1948) Women cannot serve as bartenders in cities with population of 50,000 or above. – Plaintiff: that is a deprivation of equal protection – Court: bartending has detrimental effect on a woman’s morality

Supreme Court did little for women’s rights Hoyt v. Florida (1961) – Ms. Hoyt, convicted of killing her husband, sued because she believed her all-male jury had discriminated against her – FL statute: males must serve jury duty if selected, while females have to sign up if they wanted to serve – Clear distinction based on gender – Court: statute is constitutional – Ironically enough, decided by Earl Warren, after he issued Brown

 Passed under Lyndon B. Johnson. Finally enough Republican votes to break filibuster  Act uses the Commerce Clause to prohibit businesses, hotels, and motels from discriminating on the basis of race/color  It was proposed that no gender discrimination be added to the Act Civil Rights Act of 1964

Smith Amendment to the Civil Rights Act of 1964  Howard Smith: let’s add sex to this law, to undermine support for the whole legislation  Smith Amendment included, and the law passed Howard Smith Representative from Virginia

Smith Amendment put on the back burner  Civil Rights Act enforced by several government agencies (e.g. Civil Rights Division in the White House)  Fair Employment Practice Commission (FEPC) – decides not to deal with gender issue at the moment, and focus on the rights of African Americans

National Organization for Women (NOW)  Campaigned for women’s rights, and still exists  Gave rise to the Equal Rights Amendment movement

Equal Rights Amendment (ERA)  Basically a re-statement of the Equal Protection Clause, but specifically for women  On the verge of ratification, when abortion controversy arises, and Roe v. Wade is decided  New women’s groups were suspicious of the ERA  Ultimately, could not obtain the final 3 states necessary for ratification of the amendment

 At high watermark of the ERA movement, Supreme Court hands down Craig v. Boren (1976) Is the ERA still necessary? The law constitutes “individual gender-based discrimination…” that is in fact “a denial of equal protection of the laws in violation of the Fourteenth Amendment.”  Early Supreme Court cases permitted distinctions based on sex  Court changes its mind here – Craig overturns many previous decisions (e.g. Goesaert, Hoyt)  Basically writing the ERA into the Constitution

Distinctions based on sex today Chief example: The military Women can be in the army and navy, but until recently not in combat positions  Supreme Court follows public opinion very closely, so continued to make this fine distinction  There are some circumstances under which classification by gender is allowed. Different from race

 Statutory interpretation of the Smith Amendment to the Civil Rights Act of 1964 – Courts often prefer to interpret this bizarre amendment rather than the Constitution. Allows for distinctions between gender and race  Vinson sued her boss for sexual harassment  Court – Psychological damage must be proven before discrimination can be shown – Plaintiff’s burden of proof heavy Meritor Savings Bank v. Vinson (1986)

Clarence Thomas sexual harassment hearings

1992: Year of the woman

 Meritor Savings Bank decision overturned 7 years later  Thomas votes with unanimous court – much stricter scrutiny of sexual harassment situations Harris v. Forklift Systems (1993)

“So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive... there is no need for it also to be psychologically injurious” [The Smith Amendment…] “comes into play before harassing conduct leads to a nervous breakdown.” – Justice Sandra Day O’Connor

“Gender discrimination exists whenever it is more difficult for a person of a particular gender to perform well on a job.” – Justice Ruth Bader Ginsburg

“With prestige to persuade, but not physical power to enforce, and with a will for self preservation, the Court generally follows, it does not lead, changes taking place elsewhere in society.” – Justice Ruth Bader Ginsburg Women’s rights have progressed in the court of public opinion, as well as the court of law

Civil Rights II: Other Protected Minorities Part III: Gay rights Paul E. Peterson

Public opinion on gay rights

 Edith Windsor and Thea Spyer were legally married in Canada, before moving to New York  Spyer passed away, and Windsor filed for federal estate tax exemption as a surviving spouse  IRS denied her the benefits ($363,053), because Section 3 of the Defense of Marriage Act (DOMA) – a federal law – defined spouse only as a person in a heterosexual marriage  Second Circuit Court of Appeals ruled in favor of Windsor, and case appealed to Supreme Court United States v. Windsor (2013)

5-4 decision: Section 3 of DOMA is unconstitutional It violates liberty protected by the Due Process Clause of the Fifth Amendment Majority: Ginsburg, Sotomayor, Kagan, Breyer, and Kennedy (swing vote) Dissent: Scalia, Thomas, Roberts, Alito United States v. Windsor (June 2013)

Same-sex marriage rights in California: a timeline June 2008 California Supreme Court rules that bans on same-sex marriage violate the state constitution. Gay marriage legal November 2008 Proposition 8 in CA state elections passed. Same-sex couples have no right to marry Yes: 52.24% No: 47.76% June 2013 Supreme Court declares Prop 8 unconstitutional. Gay marriage legal

 5-4 decision: Proposition 8 ruled unconstitutional  Case decided on complex issues of standing  Worth noting: unlike in Windsor, the Court is split in unexpected ways Majority: Roberts, Scalia, Ginsburg, Breyer, Kagan Dissent: Kennedy, Thomas, Alito, Sotomayor Hollingsworth v. Perry (June 2013)

“The Court has seldom lagged far behind or forged far ahead of America.” – Robert G. McCloskey, scholar

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