Women in US Constitutional History: Sex Discrimination

Women's Equality Under Federal Law

US Supreme Court Building
US Supreme Court Building. Tom Brakefield / Getty Images

The United States Constitution did not mention women or limit any of its rights or privileges to males. The word "persons" was used, which sounds gender neutral. However, common law, inherited from British precedents, informed the interpretation of the law. And many state laws were not gender-neutral. While right after the Constitution was adopted, New Jersey accepted voting rights for women, even those had been lost by a bill in 1807 that rescinded the right of both women and black men to vote in that state.

The principle of coverture prevailed at the time the Constitution was written and adopted: a married woman was simply not a person under the law; her legal existence was bound up with that of her husband's.

Dower rights, meant to protect a widow's income during her lifetime, were already being ignored increasingly, and so women were in the tough position of not having significant rights to own property, while the convention of dower that had protected them under that system was collapsing. Beginning in the 1840s, women's rights advocates began working to establish legal and political equality for women in some of the states. Property rights of women were among the first targets. But these did not affect the federal constitutional rights of women. Not yet.

1868: Fourteenth Amendment to the US Constitution

The first major constitutional change to affect women's rights was the Fourteenth Amendment.

This amendment was designed to overturn the Dred Scott decision, which found that black people "had no rights which the white man was bound to respect," and to clarify other citizenship rights after the American Civil War had ended. The primary effect was to ensure that freed slaves and other African Americans had full citizenship rights.

But the amendment also included the word "male" in connection with voting, and the women's rights movement split over whether to support the amendment because it established racial equality in voting, or oppose it because it was the first explicit federal denial that women had voting rights.

1873: Bradwell v. Illinois

Myra Bradwell claimed the right to practice law as part of the 14th Amendment's protections. The Supreme Court found that the right to choose one's profession was not a protected right, and that women's "paramount destiny and mission" was the "offices of wife and mother." Women could be legally excluded from the practice of law, the Supreme Court found, using a separate spheres argument.1875: Minor v. Happerset

The suffrage movement decided to use the Fourteenth Amendment, even with that mention of "male," to justify women voting. A number of women in 1872 attempted to vote in a federal election; Susan B. Anthony was arrested and convicted for doing so. A Missouri woman, Virginia Minor, also challenged the law. The registrar's action forbidding her from voting was the basis for yet another case to reach the Supreme Court. (Her husband had to file the lawsuit, as coverture laws forbid her as a married woman from filing on her own behalf.) In their decision in Minor v. Happerset, the Court found that while women were indeed citizens, voting was not one of the "privileges and immunities of citizenship" and thus states could deny women the right to vote.

1894: In re Lockwood

Belva Lockwood filed a lawsuit to force Virginia to allow her to practice law. She was already a member of the bar in the District of Columbia. But the Supreme Court found that it was acceptable to read the word "citizens" in the 14th Amendment to include only male citizens.

1903: Muller v. Oregon

Thwarted in legal cases claiming women's full equality as citizens, women's rights and labor rights workers filed the Brandeis Brief in the case of Muller v. Oregon. The claim was that women's special status as wives and mothers, especially as mothers, required that they be given special protection as workers. The Supreme Court had been reluctant to allow legislatures to interfere with contract rights of employers by permitting limits on hours or minimum wage requirements; however, in this case, the Supreme Court looked at evidence of working conditions and permit special protections for women in the workplace.

Louis Brandeis, himself later appointed to the Supreme Court, was the lawyer for the case promoting protective legislation for women; the Brandeis brief was prepared primarily by his sister-in-law Josephine Goldmark and by reformer Florence Kelley.

1920: Nineteenth Amendment

Women were granted the right to vote by the 19th Amendment, passed by Congress in 1919 and ratified by enough states in 1920 to take effect.

1923: Adkins v. Children's Hospital

In 1923, the Supreme Court decided that federal minimum wage legislation applying to women infringed on the liberty of contract and thus on the Fifth Amendment. Muller v. Oregon was not overturned, however.

1923: Equal Rights Amendment Introduced

Alice Paul wrote a proposed Equal Rights Amendment to the Constitution to require equal rights for men and women. She named the proposed amendment for suffrage pioneer Lucretia Mott. When she reworded the amendment in the 1940s, it came to be called the Alice Paul amendment. It did not pass the Congress until 1972.

1938: West Coast Hotel Co. v. Parrish

This decision by the Supreme Court, overturning Adkins v. Children's Hospital, upheld Washington State's minimum wage legislation, opening the door again for protective labor legislation applying to women or men.

1948: Goesaert v. Cleary

In this case, the Supreme Court found valid a state statute prohibiting most women (other than wives of daughters of male tavern keepers) from serving or selling liquor.

1961: Hoyt v. Florida

The Supreme Court heard this case challenging a conviction on the basis that the female defendant faced an all-male jury because jury duty was not mandatory for women. The Supreme Court denied that the state statute exempting women from jury duty was discriminatory, finding that women needed protection from th atmosphere of the courtroom and that it was reasonable to assume that women were needed in the home.

1971: Reed v. Reed

In Reed v. Reed, the U.S. Supreme Court heard a case where state law preferred males to females as administrator's of an estate.

In this case, unlike many earlier cases, the Court held that the 14th Amendment's equal protection clause applied to women equally.

1972: Equal Rights Amendment Passes Congress

In 1972, the US Congress passed the Equal Rights Amendment, sending it to the states. The Congress appended a requirement that the amendment be ratified within seven years, later extended to 1982, but only 35 instead of the requisite states ratified it during that period. Some legal scholars challenge the deadline, and by that assessment, the ERA is still alive to be ratified by three more states.

1973: Frontiero v. Richardson

In the case of Frontiero v. Richardson, the Supreme Court found that the military could not have different criteria for male spouses of military members in deciding eligibility for benefits, violating the Fifth Amendment's Due Process clause. The court also signaled that it would be using more scrutiny in the future in looking at sex distinctions in the law -- not quite strict scrutiny, which did not get a majority support among the justices in the case.

1974: Geduldig v. Aiello

Geduldig v. Aiello looked at a state's disability insurance system which excluded temporary absences from work due to pregnancy disability, and found that normal pregnancies did not have to be covered by the system.

1975: Stanton v. Stanton

In this case, the Supreme Court threw out distinctions in the age at which girls and boys were entitled to child support.

1976: Planned Parenthood v. Danforth

The Supreme Court found that spousal consent laws (in this case, in the third trimester) were unconstitutional, because the pregnant woman's rights were more compelling than her husband's. The Court did uphold that regulations requiring the woman's full and informed consent were constitutional.

1976: Craig. v. Boren

In Craig v. Boren, the court threw out a law which treated men and women differently in setting a drinking age. The case is also noted for setting out the new standard of judicial review in cases involving sex discrimination, intermediate scrutiny.

1979: Orr v. Orr

In Orr v. Orr, the Court held that alimony laws applied equally to women and men, and that the means of the partner were to be considered, not merely their sex.

1981: Rostker v. Goldberg

In this case, the Court applied equal protection analysis to examine whether male-only registration for the Selective Service violated the due process clause.  By a six to three decision, the Court applied the heightened scrutiny standard of Craig v. Boren to find that military readiness and appropriate use of resources justified the sex-based classifications. The court did not challenge the exclusion of women from combat and the role of women in the armed forces in making their decision.

1987: Rotary International v. Rotary Club of Duarte

In this case, the Supreme Court weighed a “State's efforts to eliminate gender-based discrimination against its citizens and the constitutional freedom of association asserted by members of a private organization.” A unanimous decision by the court, with a decision written by Justice Brennan, found unanimously that the message of the organization would not be changed by admitting women, and therefore, by the strict scrutiny test, the interest of the state overrode a claim to a First Amendment right of freedom of association and freedom of speech.