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.
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.
By the same majority, the justices reinforced the concept of affirmative action, ruling in Johnson v. Transportation Agency of Santa Clara County that an employer may promote a woman over a more qualified man as part of an effort to get more women into better-paying jobs. The man had scored slightly higher on a job test.
Kay says that although the latter decision was clearly a victory for women, the Supreme Court didn't resolve it in terms of the 14th Amendment.
``The Johnson case could have posed a constitutional issue, because it involved a state agency and the equal-protection clause would have been applicable,'' she explains. ``But, for some reason that nobody seems to understand, it was treated as a statutory case.''
Kay also points out that in this situation there was little difference in the qualifications of the two applicants. The woman was chosen to correct (as the justices put it) a ``manifest imbalance'' in skilled jobs held by men over women.
``It's not as though you are hiring an unqualified person over a qualified one,'' she says. ``It's that you are choosing between two people who are pretty much the same - with a slight edge on one of the testing instruments given the man.'' The court hinted that if there had been a major discrepancy in the applicants' qualifications, it might have ruled differently.
Some important coming cases regarding the rights of women could well be decided at the state, as well as the federal, level, Kay suggests.
``I suppose that the abortion cases are the greatest cause for concern,'' says the family law specialist. She notes that the high court has been sharply divided over abortion rights. And she speculates that if Robert Bork, President Reagan's nominee to fill the current Supreme Court opening, is confirmed by the Senate, abortion could be restricted - or even outlawed.
``There has been some indication from Judge Bork that he thinks the right to privacy - which was used as a basis for the abortion ruling [Roe v. Wade] - is not an appropriate constitutional foundation for that kind of decision,'' Kay notes.
But she stresses this is an area where the use of state constitutions ``as independent bases'' for rulings could come into play. If a state makes a decision resting on its constitution - rather than the US document - this ruling is not subject to review by the US Supreme Court.
``In abortion funding cases, the Supreme Court has said the [US] Constitution doesn't require that abortion funding be provided even if the state provides funds for childbirth,'' she says. ``But several states, including California, now have decided that their state constitution requires that such funding be made available.
Kay comments, ``This has been an important safeguard for the rights of women.'' Still, she looks to the ERA for ultimate securing of women's rights.
``The Supreme Court has never interpreted the equal-protection clause to give the kind of strict scrutiny of sex classifications that the ERA would require,'' Kay explains. ``Some of us think an ERA would even prohibit classifications based on sex and require functional classifications instead.
``And that's the kind of constitutional protection that makes you feel a little bit safer about basic rights.''
This is one of a series of interviews with constitutional scholars during the bicentennial year.