By Justice Sandra Day O'Connor

Speech at Women and the Constitution Conference

February 11, 1988

Speech at Women and the Constitution Conference
Type: Speech
Location: Women and Constitution Conference

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Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Thank you. Thank you. Thank you.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Thank you very much, Dean Knowles, Mrs. Carter, and Mrs. Johnson, and Ms. Powell and participants and guess this is a very special event. The bicentennial of our Constitution has been the subject of more than a year of celebrations and observances. It has produced some dramatic changes. For me and my colleagues on the Supreme Court. It was in order to better prepare for the 200th birthday of our national charter that Chief Justice Warren burger stepped down. One of my colleagues and a former Arizona William Rehnquist has become our 16th Chief Justice Antonin Scalia, former Court of Appeals judge has joined us and next week, in a very few days, we will also be joined on the court by Court of Appeals judge Anthony Kennedy. Now it seems natural for supreme court justices to be enthusiastic about the bicentennial of the document. We spend so many of our waking hours thinking and arguing about so many pages of the United States reports writing about but it is perhaps not so common for most people today to examine our Constitution. Although 200 years ago, most Americans debated the merits of the proposed Constitution. Recent polls indicate that today almost half of our citizens do not know why the constitution was drafted, nor even what is meant by the Bill of Rights 75% erroneously believe the Constitution guarantees of free public education 49% erroneous Lee believe the President can suspend the constitution and time of national emergency 64% believe the constitution establishes English as our national language.

I dare say an even higher percentage have little or no understanding of how the Constitution and the Bill of Rights apply to women. With such widespread lack of understanding about our nation's charter, the bicentennial celebration has been welcome. Indeed, it provides an opportunity for each of us to learn more about the ideas embodied in the Constitution, and the ways in which they shape our lives. And it isn't enough just to read the document, we need to learn how the Constitution has been interpreted and applied in the courts of this land. In order to understand what it is come to me at the end of the 20th century. This seminar gives us an opportunity to review one particular area of constitutional law, specifically its application to women, a most impressive group of speakers and sponsors and participants has been assembled to address many aspects of this subject. And I'm honored to be part of it. One reason the Constitution and the Bill rights have survived for two centuries, is that they were for the most part, drafted and broad general terms. The drafters left to future generations the task of giving their words texture and meaning in the context of changing times and current problems. Although the power of judicial review is set by some to be the cornerstone of our constitutional law, courts are almost never the first to ponder the constitutional questions that come before them. article three of the Constitution empowers federal courts to decide only genuine cases or controversies. This means that in the first instance, it is up to state and federal legislators and executives to decide whether the laws they enact or the actions they are about to take our constitutional, many provisions of the Constitution or dress directly to lead legislators and executive officials. And even when the government acts, the judiciary does not come into play until someone with a personal stake in the matter, challenges that government action or practice in court. The point is that the Supreme Court almost never has the first word in interpreting the Constitution. The court is a uniquely reactive institution. Our agenda is shaped by the issues and concerns of the nation as a whole. Almost every political, economic and social problem and change in our society has a way of finding its way eventually to the courts marble halls.

But we cannot just pluck interesting issues out of the air and decide them for the benefit of future generations. When the courts agenda changes, as it surely did, beginning in 1972. In the area of sex discrimination that changes most frequently delayed response to changes in the nation's agenda. It is dictated by external forces, the actions of the other branches of government, the decisions of lower courts, and ultimately the concerns of the public. The court is only rarely in the forefront of establishing new major legal standards. And its articulation of principles of social policy, has typically at least been within the bounds of general public perceptions at the time. And the story of women and the Constitution is illustrative of that. for the fourth time at this conference already, let me mention Abigail Adams, who is remembered for her advice to her husband and 1776 to remember the ladies and drafting the new Nations Charter. Women, she said would not hold themselves bound by any laws in which they have no voice or representation. Her advice had little effect on her husband john. He answered that letter. He said that man would not give up their masculine systems. But they would be fair because in practice, he said men were the subjects of their wives. Now his response reflected a view of women sometimes expressed both in England and in the colonies. It is reminiscent of the words of Samuel Johnson, the English author and conversationalist who wants told a friend, nature has given women so much power that the law has very wisely given them little.

As we all know, the Constitution, ratified in Philadelphia on September 17 1787, was produced and voted upon by 55 delegates, or men. The final draft contains no specific mention of women. Although at various places throughout the document, the faultlessly gender neutral terms person and citizen are used. The great compromise providing for representation in the House of Representatives on the basis of population and representation in the Senate on the basis of two from each state made it possible for the constitutional convention to produce ultimate agreement on our national charter. There was as far as we know, no disagreement that representation in Congress should be based on the whole free population, women as well as men. The only express reference to this of which I am aware, was in Resolution Number seven, submitted by Edmund Randolph of Virginia on June 28. Which quote, resolved that the rite of suffrage in the first branch of the legislature of the United States ought to be in proportion to the whole number of white and other free citizens and inhabitants of every age, sex and condition. Now the committee on style rephrase this language as part of article one section two, referring simply at that time to free persons. The Constitution, however, left the regulation and qualification of voters to be determined by each state.

In 1787, only the state of New Jersey permitted women to vote, although that privilege was removed in 18, seven because of controversy surrounding a particular election at Elizabethtown, it was not to be extended again to women by any state until Wyoming did so in 1869. Perhaps partly with tongue in cheek, we are told. And it wasn't until the addition of the 19th amendment and the early part of this century, that the Federal Constitution guaranteed all citizens the right to vote. The ratification of the Bill of Rights and 1791 had little immediate effect on the legal status the rights of women. Its scriptures were limited initially to the federal government, the states were free to continuous before in fashioning the political and legal rights of their citizens. state legislation affecting women was drawn primarily from the British common law. Only in the case of unmarried women, where the laws in this country somewhat more generous than in England, at least them so far as property ownership and management were concerned. And as we have heard today from Bob Jordan, it was not until after the Civil War and the resultant adoption of the 13th 14th and 15th amendments to our Constitution, that there were arguably some national guarantees or certain individual liberties, which the state could not a bridge. But even these additions to our constitution did not easily translate and the concepts that benefited women as a group until the last half of the 20th century. Until that time, despite the efforts of women, such as Elizabeth Cady Stanton, Susan B Anthony and Sojourner Truth, society as a whole generally accepted the separate and the unequal status of women.

The 14th amendment prohibits states from denying to any person the equal protection of the laws, there's little evidence to suggest the time of its adoption and 1868 that this amendment was seen as a vehicle of women's equality under the law. In fact, the 14th amendment introduced sex specific language into the constitution for the first time. Section two of the amendment, which dealt with legislative representation and voting, said that if the right to vote were denied to any of the male inhabitants of the state age 21 or over, then the proportional representation in that state would be reduced accordingly. Moreover, the Supreme Court determined in 1873 in the slaughterhouse cases, that the Equal Protection Clause should be narrowly interpreted to apply only two state laws that discriminated against blacks. In 1880, the Court upheld a West Virginia law restricting jury service demand a decision that was not overturned if you can believe that, until 1975. Indeed, the practice of restricting jury service demand and less women registered separately to serve as jurors was expressly upheld as late as 1961. That case came to the court from Florida, where an all male jury had convicted Gwendolyn Hoyt of murdering her husband with a baseball bat. Now her defense was that his marital infidelity had so enraged her that she killed him in a fit of temporary insanity. She argued that the effect of Florida's system of jury registration by women have the effect of unconstitutionally depriving or of a jury of our peers and upholding Florida's jury practices. The court said, despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved, a man or woman is still regarded as the center of the home and family life. So stating the Court upheld the blanket excuse of all women from jury service.

It was not until after world war one and the unrelenting efforts of the suffragettes that the 19th amendment was adopted in 1920, finally, giving women the right to vote. But even the tremendous gain of the franchise did not result in serious demands for quality and laws relating to women and the labor force. The Federal women's Bureau of Labor Secretary Frances Perkins, and Eleanor Roosevelt, among others, oppose the first introduction of an Equal Rights Amendment, and they supported laws giving women special protections such as maximum working hours. Such a law had been upheld by the Supreme Court in 1980. Mueller versus Oregon, where the court said history discloses the fact that woman has always been dependent upon man, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men. The court reason that protectionist legislation was justified because it was designed to compensate for the special burdens resting on women. Upon reading the court's opinion, it is apparent that many of the burdens the court perceived were the result of societal stereotypes rather than actual biological differences between the sexes. The court found, for example, that the two sexes differed in the self reliance which enables one to assert full rights and in the capacity to maintain the struggle for existence. Yet one sees it even in that opinion, in 19, eight, an awkward attempt by the court to come to grips with the problem of health physical differences between the sexes, should affect their treatment under the law, a problem of which is continued to perplex the courts and all the succeeding years. For the first half of the 20th century, the court continued to defer to legislative judgments regarding the differences between the sexes.

In 1948, a woman named Valentine gets hurt, and three other women challenge the constitutionality of a Michigan statute, forbidding a woman from being a bartender, unless she was the wife or daughter of the male owner of the bar. The court and an opinion by Justice Frankfurter reject the claim that the statute violated the equal protection clause, saying that despite the vast changes in the social and legal for, of women, the state could unquestionably forbid all women from working as bartenders. The court was unwilling to second guess the judgment of the Michigan legislature that bar ownership was hazardous to women. Until the latter half of this century, few women considered practicing law or medicine or any of the other traditionally male occupations. in family law, property law and elsewhere, women and particularly black women were relegated to a position that could at best be described as second class. correctly perceiving the law as an engine of oppression. few women were eager to get on the train will happily Of course, the last half of this century, has witnessed a revolution in women's legal and political status.

My chambers window in Washington DC, commands of you will a small red brick building a house, which was the headquarters of the National Women's Party and the home of suffered just Alice Paul. And it serves as a daily reminder to me that less than 70 years ago, women had yet to obtain that most basic civil right, the right to vote. It also serves as a reminder, that single minded determination and effort can bring about fundamental changes, even in a well entrenched system of discrimination. The great catalyst for the growth of civil rights litigation generally was the school desegregation case of Brown versus Board of Education, decided in 1954. In the aftermath of that landmark decision, public and legislative attention began to focus not only on racial discrimination, but also on sex discrimination. Women emerged in significant numbers all across the country in the 1960s. to demand equal opportunity, primarily in the workforce. Pursuant to its power under the Commerce Clause, Congress enacted both the Equal Pay Act of 1963 and title seven of the Civil Rights Act of 1964, prohibiting employment discrimination on the basis of race or sex. In 1972, Congress sent the proposed Equal Rights Amendment to the states for ratification. In response, although it was not ratified, many states became active in reviewing state legislation to remove discriminatory laws and the past state civil rights legislation. The Supreme Court began to look more closely at legislation providing this similar treatment for similarly situated women and men. In the early 1970s.

The first case, in which the court found a state law discriminating against women to be unconstitutional, was Reid against Reid. The case was decided in 1971, more than 100 years after the ratification of the 14th amendment, applying only a rationality standard. The court struck down on Idaho law giving them an automatic preference and appointment set it as administrators of the state's following read the court and validated a broad range of discriminatory statutes under the Equal Protection Clause of the 14th amendment. For example, a federal law providing for determination of a spouse's dependency based on the sex of the member of the Armed Forces claiming the benefits of social security at provision allowing widows but not widowers to collect survivors benefit a state law requiring divorced fathers to support their sons until age 21, but their daughters only to age 18. A state law permitting the sale of beer to women at age 18, but not to man until age 21. A state law requiring men but not women to pay alimony after divorce, and a state statute granting only husbands the right to manage and dispose of jointly owned property without the spouses consent. In 1976, in the case of Craig v. Boren, the court adopted a somewhat stricter standards of review for sex based classifications, and held that to withstand constitutional challenge under the equal protection clause. classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives. All in all, the court has heard over 50 cases since 1971, involving various sec space challenges under the equal protection clause to state and federal laws relating to hiring, promotions, maternity leave disability insurance, pension rights and seniority. Some of the challenges have been brought by women, some by men. Not all those challenges have been successful. But there was no question that the court has now made clear that it will no longer view as benign, archaic and stereotypical notions concerning the roles and abilities of males and females. A statute classifying people on the basis of sex will not be upheld. The court says absent an exceedingly persuasive justification for the classification.

The volume of cases in the Supreme Court dealing with sex discrimination has declined somewhat in the 1980s. Several of the more recent cases is brought before the court have involved interpretations of title seven rather than the equal protection clause. In his Sean vs. kingdoms falling a case from this city. The court held that once a law firm makes partnership consideration of privilege of employment, the firm may not discriminate on the basis of sex in its selection of partners, the court the court has also recognized that sexual harassment creating a hostile workplace environment violates title seven and last term. The court held that title seven does not prohibit an employer from adopting an affirmative action plan, taking sex into account in order to remedy the under representation of women in traditionally segregated jobs. Other recent cases have involved first amendment challenges to state and local law designed to end sex discrimination. And Roberts versus the Jaycees the Supreme Court upheld a Minnesota statute that required the Jaycees to admit women as full voting members. Just last term, the Court upheld the California law requiring rotary clubs to admit women. The court reason that any infringement on the club members freedom of association was justified by the state's compelling interest and eliminating sex discrimination and ensuring women equal access to leadership skills and business contacts. 15 years have now passed since the courts controversial ruling and Roe v. Wade invalidating state laws restricting abortions during the first three months of pregnancy. This decision which is of obvious interest to women, whether they favor or oppose it rested not on the Equal Protection Clause but on a right of privacy which the court held implicit constitution. Since Roe v. Wade, the court has heard approximately 14 additional cases, dealing with the regulation and the funding of abortion procedures. There is no doubt that for the remainder of this century, the federal and state courts will continue to see cases dealing with sex face discrimination, affirmative action, reproductive rights and other sensitive issues affecting women. As I've noted, the courts response and the development of constitutional doctrine is typically a delayed response to changes and new developments in the nation's focus and agenda. The court is not a bad place from which to get some sense of the nation's concerns, or at least its national legal concerns. The more than 4000 petitions for review we get each year come from all across the country. And they involve a very, very wide range of legal issues. The Court hears oral argument and cases that have their Genesis and front page actions by Congress, as well as in the actions of police officers and tiny towns. The attorneys who appear before the court and the clients whose problems have brought them there present a similarly broad geographical cross section. Eb five once said, democracy is based on the recurrent suspicion that more than half of the people are right more than half of the time.

In the narrow view, the Supreme Court is based on the suspicion that five justices are similarly correct. In the broader view, I think the justices do contribute to the wider democracy. We struggle with the national issues and attempt to define from a national perspective. What it is that the federal laws and the constant to say, if you do not agree with all the courts holdings, you are certainly not alone. But you may be confident that we never stopped crying and our writings on every case on our agenda to contribute appropriately to the fragile balances of our national democracy. To put it differently, the court is somewhat akin to a fire department. When Congress or the executive branch or a state lights a new fire, we are inevitably summoned to attend to the Blaze. Some litigants will ask us to fanned the flames. Others will demand their extinguishment and still others will ask only that the fire not be allowed to spread. But unlike most fire departments, Justice moves slowly. So we usually arrive on the scene some years late. But once there we must usually linger file. It often takes a serious of decisions to flesh out a new statute or to draw new boundaries between state and federal authority, or to reconsider the limits on government intrusions on individual rights. Eventually, of course, most of what can be done in an appellate court is completed. and thereafter we see little more of that particular conflagration. In the broad area women on the Constitution, I would say we will linger for a good many more years.

Despite the relative gains that women have made over the last 30 years. in absolute terms, there are still significant gaps. For example, in my own profession, while women represent as much as 30% of associates employed by a group of large law firms surveyed by the National Law Journal, only 5% of the partnership positions were occupied by women in Congress less than five out of every 100 members of the 100 Congress are women, and less than 5% of the nation's judges are women. Some of these disparities must be attributed to women's light start in these areas. Yet some also must be attributed to tenacious cultural and social barriers. But I'm sure you agree with me, that society as a whole benefits in measurably from a climate in which all persons, regardless of race or gender, may have the opportunity to earn respect, responsibility, advancement and remuneration based on ability and from a climate in which those who do achieve success are concerned about those who cannot provide for themselves. Now, despite the encouraging and wonderful gains and changes for women, which have occurred in my lifetime, there is still room to advance and promote correction the remaining deficiencies and imbalances. Let us look forward to completing the task of helping to make real, the promise of equal justice under the law. Thank you.