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Background to the Issue of Gender Discrimination

Through its tactics, its message, and its moral tone, the civil rights movement provided a model of mobilization for women. Betty Friedan, for example, published The Feminine Mystique, the early gospel of the women's movement, in 1963, the same year as the great civil rights march on Washington, D.C. Young women were also active in many civil rights and antiwar groups, including the Student Nonviolent Coordinating Committee (SNCC), the Congress of Racial Equality (CORE), and Students for a Democratic Society (SDS), although they usually held subordinate positions outside the main avenues of policy making. As one observer noted in somewhat exaggerated fashion about the 1965 SDS convention, "women made peanut butter, waited on tables, cleaned up, got laid. That was their role." 38 Women learned that the kind of race-based discrimination suffered by blacks was similar to the subordinate social position in which their gender placed them.

The framers of the Constitution composed a gender-neutral document, relying on

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words such as persons, people, and electors and avoiding any explicit discrimination based on sex. Until the Civil War amendments, the states had dealt exclusively with matters of gender, most notably through the married women's property acts. Women had no formal political rights, either to vote or to hold office.

This period of federal neglect ended in the early 1870s. A few women tested the meaning of the dye-process and equal-protection provisions of the Fourteenth Amendment as they applied to matters of gender. The response was overwhelmingly negative, with the justices refusing to extend to women even the protection that they accorded to blacks. In Bradwell v. Illinois ( 1873) the Court rejected the claim of a Chicago woman that the right to practice law was an attribute of citizenship protected by the privileges and immunities clause of that amendment. Two years later, in Minor v. Happersett, the justices found that the states could restrict the suffrage to men, because the Fourteenth Amendment did not confer the right to vote on women. In 1894 the Court went a step further and held in In Re Lockwood that states could confine the word "person" in the Fourteenth Amendment to men alone. Even when the justices did find in favor of state legislation designed to protect female workers (e.g., Muller v. Oregon [ 1908]), they endorsed long-standing paternalistic attitudes toward women by all-male lawmakers. Equitable treatment for women did not mean equality before the law.

The women's movement in the early twentieth century sought to secure both suffrage protection and constitutional equality. It gained the former but not the latter. The states in 1920 ratified the Nineteenth Amendment, which gave half of the U.S. population the right to vote. Alice Paul, a leader of the National Woman's party, tried during the 1920s to have Congress pass another constitutional amendment that would have prohibited discrimination based on gender. This Equal Rights Amendment (ERA), however, never received sufficient votes in Congress to send it to the states for ratification. The Supreme Court, moreover, repulsed every effort to expand the legal basis of protection for women under the Constitution. In Fay v. New York ( 1947), for example, the justices held that the Nineteenth Amendment did nothing more than give women the right to vote and that it did not extend to women the right to serve on juries. In 1961, while the Supreme Court was busy dismantling race-based discrimination, it held in Hoyt v. Florida that a state could rationally find that it was a necessity to spare women from the obligation of jury service because of their place at "the center of home and family life." 39



In the 1960s, however, women's roles changed dramatically. Employment of middle-class white and married women became the norm rather than the exception; birthrates plunged and so did family size. The consumer culture made two incomes necessary, and by 1970, 60 percent of all familes with an income over $10,000 had working wives. By 1987 it was almost 80 percent. Yet through much of the 1960s and 1970s, the larger culture considered working women as less than full-fledged members of the work force; rather, they were "helping out" with the family income while men engaged in more substantial pursuits.

Change indeed began in the 1960s, but it was legislative rather than judicial. In 1963 Congress amended the Fair Labor Standards Act to require equal pay for equal work without regard to sex. The Civil Rights Act of 1964 included in Title VII a ban on discrimination in employment on the basis of sex. Southerners had originally introduced the amendment in the hope that it would kill the entire measure, but Representative Martha Griffin of Michigan succeeded in keeping it, although the federal govern

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ment was slow to enforce it. 40 Founded in 1966, the National Organization of Women (NOW) had as one of its principal goals to build a legislative foundation for women's rights, while pursuing a litigation strategy in the federal courts that would make gender-based discrimination as subject to searching judicial inquiry as was racial discrimination.

 


Date: 2015-01-29; view: 1262


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