THE BLOG

Equal Justice for Whom?

01/11/2011 01:48 pm ET | Updated May 25, 2011

January 2011 has brought a strange spotlight on the U.S. Constitution. First, Justice Scalia pronounces that women are not protected by the Fourteenth Amendment's Equal Protection Clause. Then Republicans recite the entire Constitution on the floor of the House.

It is true that anyone listening to the Republicans' reading did not hear the word "women" anywhere in the equal protection clause. But then the word "corporations" did not pass their lips either, and corporations have been covered by the guarantee of equal protection since the Nineteenth Century. Corporations are nowhere mentioned in the First Amendment either. Yet, January 21 will mark the one-year anniversary of the Supreme Court's 5-4 decision in Citizens United, which elevated constitutional protection for corporations' political speech to the level previously recognized only for natural persons. Apparently the omission of corporations from the First Amendment did not trouble Justice Scalia the way the failure to mention women in the Fourteenth Amendment does; he voted with the majority to extend the corporate right to free speech.

So, what's his problem with women? I couldn't begin to explain that. What I can tell you is what it meant when his was the prevailing view on the Supreme Court. Right up through 1971, the guiding principle on constitutional equality for women was "anything goes." Of course the Court put lipstick on it and called it the "rational basis" test; as long as discrimination was rationally related to serving a legitimate government interest, it passed constitutional muster. Any old rationale would do.

Illinois denied Myra Blackwell the right to practice law? No problem. "The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother." Women were also denied the right to practice medicine, work as bartenders (waitressing was fine) and myriad other jobs. Legislators "protected" women from higher paying jobs and the burden of voting. The Supreme Court said it was all good.

The justices' willing suspension of disbelief is illustrated nicely in a case denying women the right to be tried by a jury of their peers. Gwendolyn Hoyt challenged Florida's required special registration for women to serve on juries, and true to form the Court said, "No problem." After all, the justices opined, denying women equal constitutional rights was rational since in 1961 women were still "the center of home and family life." They apparently missed the irony that this particular center of home and family life had been convicted by an all-male jury of bludgeoning her husband to death with a baseball bat. She wanted some women on the jury who might understand how a wife could be driven to such things.

Justice Scalia may find this reasoning compelling. I venture to say most of us don't. Let us remember, however, that the Constitution only protects what five of the Supreme Court Justices say it protects. Women's assurance of "equality of rights under the law" continues to depend on who is elected to the White House and the U.S. Senate, something to keep in mind in 2012's elections. In the long run, however, we should keep in mind the need to add an Equal Rights Amendment to the U.S. Constitution, to guarantee equality between women and men in language so clear that even Justice Scalia cannot mistake it.