Women's Rights and the Fourteenth Amendment

Controversy Over the Equal Protection Clause

Draft of the 14th Amendment
Draft of the 14th Amendment. MPI/Getty Images

Beginnings: Adding "Male" to the Constitution

After the American Civil War, several legal challenges faced the newly-reunited nation. One was how to define a citizen so that former slaves, and other African Americans, were included. (The Dred Scott decision, before the Civil War, had declared that black people "had no rights which the white man was bound to respect....") The citizenship rights of those who had rebelled against the federal government or who had participated in secession were also in question.

One response was the Fourteenth Amendment to the US Constitution, proposed on June 13, 1866, and ratified July 28, 1868.

During the Civil War, the developing women's rights movement had largely put their agenda on hold, with most of the women's rights advocates supporting the Union efforts. Many of the women's rights advocates had been abolitionists as well, and so they eagerly supported the war which they believed would end slavery.

When the Civil War ended, women's rights advocates expected to take up their cause once again, joined by the male abolitionists whose cause had been won. But when the Fourteenth Amendment was proposed, the women's rights movement split over whether to support it as a means of finishing the job of establishing full citizenship for the freed slaves and other African Americans.

Why was the Fourteenth Amendment controversial in women's rights circles? Because, for the first time, the proposed Amendment added the word "male" into the US Constitution.

Section 2, which dealt explicitly with voting rights, used the term "male." And women's rights advocates, especially those who were promoting woman suffrage or the granting of the vote to women, were outraged.

Some women's rights supporters, including Lucy Stone, Julia Ward Howe, and Frederick Douglass, supported the Fourteenth Amendment as essential to guaranteeing black equality and full citizenship, even though it was flawed in only applying voting rights to males.

Susan B. Anthony and Elizabeth Cady Stanton led the efforts of some women's suffrage supporters to try to defeat both the Fourteenth and Fifteenth Amendments, because the Fourteenth Amendment included the offensive focus on male voters. When the Amendment was ratified, they advocated, without success, for a universal suffrage amendment.

Each side of this controversy saw the others as betraying basic principles of equality: supporters of the 14th Amendment saw the opponents as betraying efforts for racial equality, and opponents saw the supporters as betraying efforts for the equality of the sexes. Stone and Howe founded the American Woman Suffrage Association and a paper, the Woman's Journal. Anthony and Stanton founded the National Woman Suffrage Association and began publishing the Revolution.

The rift would not be healed until, in the late years of the 19th century, the two organizations merged into the National American Woman Suffrage Association.

Does Equal Protection Include Women? The Myra Blackwell Case

Though the second article of the Fourteenth Amendment introduced the word "male" into the Constitution in respect to voting rights, nevertheless some women's rights advocates decided that they could make a case for women's rights including suffrage on the basis of the first article of the Amendment, which did not distinguish between males and females in granting citizenship rights.

Myra Bradwell's case was one of the first to advocate for use of the 14th Amendment to defend women's rights.

Myra Bradwell had passed the Illinois law exam, and a circuit court judge and a state attorney had each signed a certificate of qualification, recommending that the state grant her a license to practice law.

However, the Supreme Court of Illinois denied her application on October 6, 1869. The court took into consideration the legal status of a woman as a "femme covert"—that is, as a married woman, Myra Bradwell was legally disabled. She was, under the common law of the time, prohibited from owning property or entering into legal agreements. As a married woman, she had no legal existence apart from her husband.

Myra Bradwell challenged this decision. She took her case back to the Illinois Supreme Court, using the Fourteenth Amendment's equal protection language in the first article to defend her right to choose a livelihood.

In her brief, Bradwell wrote "that it is one of the privileges and immunities of women as citizens to engage in any and every provision, occupation or employment in civil life."

The Supreme Court found otherwise. In a much-quoted concurring opinion, Justice Joseph P. Bradley wrote "It certainly cannot be affirmed, as a historical fact, that this [the right to choose one's profession] has ever been established as one of the fundamental privileges and immunities of the sex." Instead, he wrote, "The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother."

While the Bradwell case raised the possibility that the 14th Amendment could justify women's equality, the courts were not ready to agree.

Does Equal Protection Give Voting Rights for Women?
Minor v. Happerset, U.S. v. Susan B. Anthony

While the second article of the Fourteenth Amendment to the US Constitution specified certain voting rights connected with males only, women's rights advocates decided that the first article could be used instead to support the full citizenship rights of women.

In a strategy carried out by the more radical wing of the movement, led by Susan B. Anthony and Elizabeth Cady Stanton, woman suffrage supporters attempted to cast ballots in 1872. Susan B. Anthony was among those who did so; she was arrested and convicted for this action.

Another woman, Virginia Minor, was turned away from the St. Louis polls when she tried to vote -- and her husband, Frances Minor, sued Reese Happersett, the registrar. (Under "femme covert" presumptions in the law, Virginia Minor could not sue in her own right.)

The Minors' brief argued that "There can be no half-way citizenship. Woman, as a citizen in the United States, is entitled to all the benefits of that position, and liable to all its obligations, or to none."

In a unanimous decision, the United States Supreme Court in Minor v. Happersett found that women born or naturalized in the United States were indeed American citizens, and that they always had been even before the Fourteenth Amendment.

But, the Supreme Court also found, voting was not one of the "privileges and immunities of citizenship" and therefore states need not grant voting rights or suffrage to women.

Once again, the Fourteenth Amendment was used to try to ground arguments for women's equality and the right as citizens to vote and hold office -- but the courts did not agree.

Fourteenth Amendment Finally Applied to Women: Reed v. Reed

In 1971, the Supreme Court heard arguments in the case of Reed v. Reed. Sally Reed had sued when Idaho law presumed that her estranged husband should be automatically selected as executor of the estate of their son, who had died without naming an executor. The Idaho law stated that "males must be preferred to females" in choosing estate administrators.

The Supreme Court, in an opinion written by Chief Justice Warren E. Burger, decided that the Fourteenth Amendment did prohibit such unequal treatment on the basis of sex -- the first US Supreme Court decision to apply the Fourteenth Amendment's equal protection clause to gender or sexual distinctions. Later cases have refined the application of the Fourteenth Amendment to sex discrimination, but it was more than 100 years after passage of the Fourteenth Amendment before it was applied to women's rights.

Fourteenth Amendment Applied: Roe v. Wade

In 1973, the U.S. Supreme Court found in Roe v. Wade that the Fourteenth Amendment restricted, on the basis of the Due Process clause, the government's ability to restrict or prohibit abortions. Any criminal abortion statute that did not take into account the stage of pregnancy and other interests than merely the life of the mother was deemed to be a violation of due process.

Text of the Fourteenth Amendment

The entire text of the Fourteenth Amendment to the US Constitution, proposed on June 13, 1866, and ratified on July 28, 1868, is as follows:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Text of the Fifteenth Amendment to the US Constitution

Section. 1. 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 race, color, or previous condition of servitude.

Section. 2. The Congress shall have power to enforce this article by appropriate legislation.