America's Unwritten Constitution: The Precedents and Principles We Live By (49 page)

None of this is to say that racial-equality issues are identical to sex-equality issues. When it comes to race, a racial minority may not be able to protect itself fully in the legislature, even after courts have stepped in to strike down old laws from the pre-black-suffrage era. By contrast, in certain sex-discrimination situations, perhaps women, comprising half of the electorate, could have protected themselves well enough, thank you, had judges in the 1920s simply wiped the slate clean of pre-1920 laws entrenching men in power.

OF COURSE, JUDGES DID NOT INVALIDATE
such laws in the 1920s. Instead, the Supreme Court waited roughly half a century to take on sex discrimination in earnest. Only in the 1970s did the justices reinterpret the Fourteenth Amendment’s equal-protection clause to approximate the then-pending Equal Rights Amendment (ERA), a proposed amendment that was never formally ratified by the requisite number of states. Having just seen how some thoughtful judges might have plausibly invoked the Nineteenth Amendment’s spirit to strike down these old laws as early as the 1920s or 1930s, let’s now see why the judiciary in fact waited until much later to act.

Recall that the key constitutional command of the Fourteenth Amendment is a command of birth equality: Americans should not be condemned to second-class citizenship because they were born black—or female, for that matter. Recall further that the Nineteenth Amendment envisioned women’s equality across the entire range of political rights—voting, officeholding, jury service, and so on. Prior to the 1960s, some modest judges might understandably have hesitated to strike down various sex-discrimination laws (including laws regulating contraception and reproduction) because these laws were arguably not designed to treat women as inferiors or to keep them out of legislatures or off the judicial bench. Rather, many of these gender-based laws could have been viewed—and in fact were widely viewed for much of the twentieth century—as simply recognizing abiding differences between the sexes: Separate, but equal.

Though it might be tempting to scoff at this slogan, we must resist the temptation, for even today the concept remains a prominent feature of our
constitutional landscape. Most public buildings continue to have separate bathrooms for males and females; and most public schools continue to operate sex-segregated locker rooms and sports programs for boys and girls. These separations go virtually unchallenged in society and in law because they are not generally viewed as invidious. They are not widely perceived as privileging males over females—or females over males, for that matter—in their design and effect. They are simply recognitions of differences between the sexes. Separate, but equal. To put the point sociologically and politically, many women as well as many men today do not find separate bathrooms and gym classes to be badges of female inferiority. Indeed, most people today—most men and most women—may well prefer separate bathrooms and gym classes.
¹³

Now consider pre-1960s America. The law treated men and women differently in myriad ways, but until the 1960s perhaps judges thought that most women did not themselves find these legal differences to be markers of subordination. Men generally went off to work in the economic marketplace (with all sorts of legal encouragements), and women generally stayed home and raised kids (again, with various legal nudges), but these law-induced differences were not clearly claimed by vast numbers of women themselves to be denials of equality.

Only in the 1960s and 1970s did very large numbers of women begin to take to the streets to challenge this separate-spheres regime, labeling it invidious and unequal. Only in this era did a veritable army of feminists demand a formal federal Equal Rights Amendment. Only in this era did a substantial number of states adopt state ERAs. (Before 1970, two low-population states, Utah and Wyoming, had constitutions with explicit ERA-style provisions. By 1977, sixteen state constitutions, accounting for roughly one-third of the national population, explicitly guaranteed sex equality.) Only in this era did Congress pass major civil-rights laws prohibiting sex discrimination. Only in this era did Congress propose an ERA, which was emphatically backed by both major-party presidential platforms in 1972. Only in this era did states comprising nearly two-thirds of the national population ratify this proposal. Once these things happened, it became impossible for judges to ignore the threat to women’s equality posed by a wide range of previously acceptable laws.
¹⁴

True, the ERA was not formally ratified in the 1970s. But precisely
because the Constitution already featured an amendment (the Fourteenth) explicitly promising equality and committed to equal birth-status, the ERA itself was a largely declaratory proposal—a restatement and elaboration. Many of the ERA’s supporters and detractors were fully aware that the Fourteenth Amendment’s language already promised equality and was pointedly not limited to racial equality, as was the language of the Fifteenth Amendment. The failure of the ERA did not repeal or erase any part of the Fourteenth Amendment. The ERA debate did, however, highlight that a strong majority of Americans now supported a robust idea of sex equality. This broad popular support was entitled to interpretive weight as a popular gloss on the Fourteenth Amendment and the Ninth Amendment, in keeping with the principles of America’s lived Constitution.

TO SAY THAT JUDGES
properly took the insights of feminists into account in the 1960s and 1970s is not to say that popular social movements may, as a general matter, amend the Constitution by informal actions outside Article V. For example, no informal popular movement comparable to 1970s feminism could have made thirty-three-year-olds eligible to serve as president in the absence of a formal textual amendment. Where the written Constitution is clear and fixed—as with the presidential age requirement of thirty-five years—only written amendments can ordinarily suffice to change the written rules.

The idea here is not to draw a sharp line between, say, age rules on one side and equality rules on the other side. After all, the Constitution’s age rules themselves were rooted in a vision of social equality. (In their eighteenth-century context, they were anti-dynasty provisions of sorts.) Rather, the idea here is that that some constitutional applications plainly pivot on broad understandings of social meaning, whereas other constitutional applications do not.
¹⁵

Thus, on certain equality issues, the relevant constitutional rules and principles may be so clear that social meanings and social movements are largely beside the point. The Fifteenth Amendment was violated by massive race-based disfranchisement long before Dr. King, Thurgood Marshall, and other leaders mobilized large numbers of Americans to protest this legal wrong. As with the Black Codes that facially violated the central
meaning of the Fourteenth Amendment, race-based disfranchisements of blacks violated the core meaning of the Fifteenth Amendment regardless of how the disfranchised persons, or anyone else, may have understood the matter. These laws were unequal and thus unconstitutional regardless of their social meaning.

But other government practices have been properly viewed as unequal and thus unconstitutional
because
of their social meaning. In these situations, the social meaning was the basis for the legal verdict of unconstitutionality. Twentieth-century contraception and abortion laws were particularly difficult for judges to analyze under purely formal principles of equality precisely because such laws targeted features unique to women—namely, their sex-specific capacity to bear children. As to these laws, social meaning was thus particularly important—especially the social meaning of contraception and abortion laws in the eyes of women themselves.

TO GET A SENSE OF
how the abortion issue looked prior to the rise of late-twentieth-century feminism, let’s imagine a stylized dialogue circa 1950 between two earnest and knowledgeable constitutional scholars, Adam and Eve. Let’s suppose that both Adam and Eve accept the idea that the Fourteenth Amendment was, at its core, an amendment designed to secure the birthright equality of all citizens—equality not just between blacks and whites, but also between women and men. But in 1950, Adam, who is cast as the traditionalist in this dialogue, does not have the benefit of the massive feminist consciousness-raising of the 1960s and 1970s. Let’s imagine that Eve, by contrast, is familiar with avant-garde feminist theories that would soon gain wider currency. (Film buffs might profitably envision Spencer Tracy in the role of Adam, and Katharine Hepburn as Eve; recall the 1949 romantic comedy
Adam’s Rib
).
¹⁶

A
DAM:
Eve, how exactly does a constitutional norm of sex-equality prohibit laws designed to protect the innocent human life of male and female babies alike? Many of these laws operate directly only upon physicians and operate equally on physicians of both sexes. This, indeed, is true of the Texas law that you find so troubling.

E
VE:
Adam, please get real. The primary weight of the Texas law falls not
upon the physician, whoever he or she may be. Rather, the law imposes its main burden upon pregnant women who are denied access to competent medical procedures. And what a burden it is to be obliged to carry an unwanted pregnancy to term! As a practical matter, it can require a woman to end her education or career, at least temporarily. It can impose serious financial costs and medical risks. It can put her in danger of physical attack from the biological father or a man who suspects that he is not the biological father. It can dramatically interfere with her freedom of movement, her daily routine, her diet, her relations with others around her, her mental state, and her body more generally. Especially in cases of rape and incest, the pregnancy itself can impose severe mental trauma on her. After she has given birth, psychological and social pressures may make it difficult for her to give the baby up for adoption. In that event, the serious burden of an unwanted pregnancy would be only the beginning of the obligations that she will bear and the possible sacrifices she may be obliged to make.

A
DAM:
Nothing in Texas’s abortion law requires that women keep children after birth rather than giving them up for adoption. So if women decide to keep their babies, that is their free choice—and probably a good one for all concerned. As for the burdens of pregnancy itself, there exists an obvious and indeed compelling justification for imposing these burdens, even (though I admit this might seem callous to you) in cases of rape and incest. That compelling justification is to protect the life of the unborn and innocent human life inside the pregnant woman’s womb. Her liberty is abridged so as to protect the unborn baby’s life. Texas and other states may properly choose life over liberty. The Constitution itself—twice!—places life ahead of liberty in its phraseology. Surely states can do the same in their policies.

E
VE:
The problem is that states such as Texas have chosen to impose these life-sustaining burdens only on women.

A
DAM:
I think your quarrel there is with God and not the state. He’s the one who made the rules you are complaining about.

E
VE:
What makes you so sure God is a “He”? In any event, my complaint is not with the Almighty but with Texas. There are, after all, other ways of promoting unborn human life that would be more evenhanded between men and women. For example, in the case of unmarried women,
the law could require the biological father to remunerate the woman for half of the total financial and physical costs that she must bear during the course of her pregnancy. This more gender-neutral approach would require him to compensate her for her childbearing expenses, work, and labor, and thus to bear his fair share of the burden. Yet Texas law does nothing of the sort.

A
DAM:
Your alternative scheme sounds more heavy-handed than even-handed. In fact, it sounds downright socialistic. To repeat: Nature itself imposes the burden of childbearing on the biological mother rather than the father.

E
VE:
Nature also makes abortion possible. If the law intervenes to limit her “natural” freedoms, why not his? Indeed, in the act of procreation itself, men would seem to bear equal if not more responsibility.

A
DAM:
Not always. We can imagine sexual intercourse in the absence of full male consent, as in the case of statutory rape involving an adult female and an underage male.

E
VE:
A cute point—but again, please get real. Sex in the absence of full consent by the woman—because of male coercion that rises to the level of legal rape, or some lower level of force or fraud—is far more common than sex in the absence of full consent by the man. Conscription of a father’s income stream is actually
easier
to justify than conscription of a mother’s womb. In almost every case, his commission of the sex act was voluntary; but in many cases, hers may not have been. And yet, to repeat, the Texas law saddles her with special burdens while exempting him. Texas obliges her to give up nine months of her life to sustain the unborn life, but does not oblige him to give up even nine dollars.

A
DAM:
Well, your plan might require the state to do lots of complicated tests to establish prenatal paternity. Surely, you will admit that a woman’s pregnancy and a man’s financial obligations are logically different things, even though you are trying to conflate them. The Constitution requires only that men and women be treated equally, and when it comes to pregnancy, men and women are just different. Each has a different role. Such it has always been and will always be.