Plea to put women into the Constitution
HERMA HILL KAY would like to do today what the Founding Fathers forgot to do two centuries ago: put women into the United States Constitution. Ms. Kay, an authority on women's rights, points out that 200 years ago the framers ignored the rights of women in composing their document. Kay talked to the Monitor about women and the Constitution in her academic office here on the campus at Berkeley. A lawyer, University of California law professor, and family law specialist, she is also licensed to practice before the US Supreme Court.Skip to next paragraph
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She sees passage of a federal Equal Rights Amendment as central to securing the rights of women in the US. The ERA, proposed as the 27th Amendment to the US Constitution, died in 1982. It had been ratified by 35 states, three shy of the number needed. This year, it was reintroduced in the House and Senate. A two-thirds vote is needed before it can be sent to the states again.
Meanwhile, the 14th Amendment's so-called ``equal protection'' clause has become a vehicle for promoting women's rights. The amendment, passed in 1868, says in part that no state shall ``deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.''
Kay says that until the early 1970s the courts ``held to a very narrow interpretation [of the 14th Amendment] that really made it possible to authorize discrimination based on sex.''
``The equal-protection clause had to be developed by racial groups, primarily blacks, that were trying to achieve equality,'' she explains.
A constitutional breakthrough for women came with a unanimous Supreme Court decision in 1971. The justices ruled in a family-related dispute, Reed v. Reed, that the guarantee of equal protection invalidated an Idaho law that automatically favored a father over a mother as executor of their son's estate.
Kay says this case ``opened the door to the use of the clause as a means of really attacking statutory classification, and it also laid the groundwork for an argument that sex discrimination should be treated as a suspect classification as race discrimination was treated.''
The law professor stresses, however, that the latter argument has never been fully endorsed by the Supreme Court. ``It got four votes in one case, but it has never gotten the majority,'' she says.
But there have been recent significant gains for women as a result of judicial interpretation. Earlier this year, the high court handed down rulings on issues relating to pregnancy leave and affirmative-action promotional opportunities for women.
``These were statutory cases,'' Kay notes. ``They both arose out of interpretations of Title VII of the [federal] Civil Rights Act, which prohibits discrimination in employment based on sex.''
In the so-called ``Cal Fed case,'' the justices voted 6 to 3 to uphold a California law that grants pregnant workers the right to a four-month leave to have a child and guarantees that they will get their jobs back. Rejecting the argument of a bank employer, the court concluded that a federal law prohibiting discrimination against women in the workplace does not prevent the state from discriminating in favor of them.