A Constitutional Protection

Photo by Vlad Tchompalov unsplash.com

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

With eyes on the upcoming November 8th election, my thoughts go to the women who made it possible for me to vote. Although I take the right to vote for granted, the effort it took is not forgotten. Names like Shaw, Stanton, and Anthony are some of the most famous suffrages, so we may assume the struggle was a middle and upper class white women’s endeavor. That wasn’t the case. This social movement was created, packaged, and pushed along by a host of characters, black, brown, and white who came together and bonded in their passion to fight for gender equality. Women hit the pavement and rode horses across the nation, demonstrating, protesting, and petitioning for women’s right to become full citizens.*

How did women go about demanding voting rights when they lacked fundamental political rights? It was the conundrum facing suffrage activists as they did their best to convince men to share the vote with them. Voting rights was the first step towards political influence were other issues; children’s education and general social welfare could be tackled. 

In 1848, the first Women’s Rights convention was held at Seneca Falls to address “the social, civil and religious condition of women.” Three hundred men and women came to discuss, debate, refine, and resolve a prepared Declaration of (eleven) Sentiments, drafted by Elizabeth Cady Stanton: 

The history of humankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. To prove this, let facts be submitted to a candid world.
~He has never permitted her to exercise her inalienable Right to the elective franchise (vote).
~He has compelled her to submit to law in the formation of which she had no voice (she couldn’t vote).
~He has withheld from her rights, which are given to the most ignorant and degraded men, both natives and foreigners, (etc).

The 1848 convention participants reached consensus on ten of the eleven Sentiments. The Right to vote was the most contentious. Not all women, nor most of forty or so men in attendance, favored the idea of women going out to vote. As a consequence, only about a third of the participants signed the declaration. But the public release of the Declaration of Sentiment triggered discussion among women. For some, it served as a wake-up call. But it was also met with anger and criticism, women voting was seen as a bad idea by most people in 1848. Allowing women to vote flung an arrow right in the heart of the nineteenth-century men-only political culture.

When the Civil War came to a close in 1865, slavery ended, and a new era began. The abolition and women’s rights were intertwined, two peas in a pod of a new political order. Substantial questions needed to be asked and answered. Who was an American citizen? Yes, for white men, but what about white women or men and women of color? Moving forward, what should the relationship between federal power and the rights and roles of the states be?  Suffrage activists saw this as their moment, a chance to win voting rights for women. In the words of Elizabeth Cady Stanton: “It was we, the people; not we, the white male citizens; nor yet we, the male citizens; but we, the whole people, who formed the Union….Men, their rights and nothing more; women, their rights and nothing less.” It was an effort to insert gender into the national debate about citizenship.  

In 1870, the 15th Amendment to the US Constitution declared that “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.” By omitting gender as in “right of men and women of the United States,” we were left with men of all colors could vote, but not women of any race. Soon after, support for women’s rights waned except in the heart of trailblazer women and thank goodness, or we might still be excluded from the ballot box. Suffrages refused to let the question of citizenship and human rights be swept aside. The struggle for equality continues, today it’s about women’s rights to make decisions about their own body.

According to 2016 poll (by the ERA Coalition/Women’s Equality Fund), 80% of Americans mistakenly believe that women and men are guaranteed equal rights in the US Constitution. They are not. If they were, they would have the right to make decisions about their reproduction rights no matter how others felt about it. Justice Antonin Scalia from the conservative wing of the Supreme Court recognized the US Constitution does not prohibit sex discrimination. “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” Adding 24 words, women would have equal protection under the Constitution: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” No more than men’s rights. No less than men’s rights. 

The ERA is about the kind of society we create. Our courts treat discrimination based on race, religion, and nationality, as spelled out in the Constitution, with strict scrutiny. Gender discrimination, not spelled out in the Constitution, is viewed with greater leniency. Arguing the Constitution is gender-neutral flies in the face of history. And laws change along with the people who interpret them. Rep. Mary Gay Scanlon put it this way: “the laws on the books aimed at protecting women are not a substitute for constitutional protection.”  

Sources:

Why They Marched: Untold Stories of the Women Who Fought for the Right to vote, Susan Ware

The Snyder Act

The 19th Amendment