Info Brief: Fourteenth Amendment—Equal Protection: Women

Learn how the Fourteenth Amendment has been interpreted to guarantee equal protection for women.

Let’s turn now to the Fourteenth Amendment and gender.

The Fourteenth Amendment and Women: The Early Cases

In early cases—in the late 1800s and near the turn of the twentieth century—the Supreme Court said that the Fourteenth Amendment did not promise full freedom and equality for women. In Bradwell v. Illinois and Minor v. Happersett, leading advocates of women’s rights argued that the Fourteenth Amendment’s Privilege or Immunities Clause protected women’s right to practice law and women’s right to vote. The Supreme Court rejected these arguments.

Justice Bradley (concurrence in Bradwell): “The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”

Justice Bradley (concurrence in Bradwell): “Man is, or should be, women’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”

The Fourteenth Amendment and Women: The Modern Cases

However, beginning in the 1970s, the Court reversed course—a litigation strategy developed (in part) by the late Ruth Bader Ginsburg (when she was a lawyer). (This is a full century after Bradwell and Happersett!)

Despite graduating first in her class from an elite Ivy League law school, Ginsburg at first struggled to find work. Law employers (including judges and some Supreme Court justices) would not hire her because she was a woman. She eventually became a law professor, but she was paid less than her male colleagues. At the time, she was one of only twenty women law professors in the country.

As a professor and as a lawyer, Ginsburg pioneered a new litigation strategy to gain full equality for women. Ginsburg formed and led the Women’s Rights Project at the ACLU, and she worked on hundreds of equal rights cases. In her first oral argument at the Supreme Court, to make her point, Ginsburg quoted nineteenth-century women’s rights advocate Sarah Grimkè: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

Ginsburg won. In Frontiero v. Richardson (1973), the Court held that the government can’t give benefits to military families differently on the basis of sex.

Justice William Brennan (plurality opinion in Frontiero): “With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.”

Ginsburg’s strategy and tireless advocacy worked. In a series of cases, the Supreme Court began to read the Constitution to protect against sex discrimination in a variety of contexts. For instance, these cases ruled that:

The administrators of estates can’t be treated differently based on sex (Reed v. Reed).
Oklahoma can’t treat men and women differently in its alcohol laws—men had to be 21, women only 18 to buy alcohol (Craig v. Boren).

The Court eventually applied (what’s known as) intermediate scrutiny to laws that discriminated on the basis of sex. This approach means that to defend a law against a constitutional challenge, the government must show that the sex-based classification is substantially related to an important governmental interest or goal.

Finally, Ginsburg herself had the chance to write a landmark sex equality opinion as a Supreme Court justice after President Bill Clinton appointed her to the Supreme Court in 1993. In a majority opinion in United States v. Virginia by Justice Ginsburg, the Court ruled that the Virginia Military Institute’s male-only admissions policy violated the Equal Protection Clause.

The Court ruled that to satisfy intermediate scrutiny, Virginia needed an “exceedingly persuasive justification” for its policy. And it concluded that offering an alternative school for women was not sufficient because it did not offer the same benefits, training, etc., as the well-established VMI.

Justice Ginsburg (majority opinion in United States v. Virginia): “Sex classifications . . . may not be used, as they once were, . . . to create or perpetuate the legal, social, and economic inferiority of women.”

Justice Ginsburg (majority opinion in United States v. Virginia): “Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this Court acknowledged a generation ago, ‘our National has had a long and unfortunate history of sex discrimination.’ . . . Through a century plus three decades and more of that history, women did not count among voters composing ‘We the People’; not until 1920 did women gain a constitutional right to the franchise.”

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