Equal Means Equal by Jessica Neuwirth

Author:Jessica Neuwirth [Neuwirth, Jessica]
Language: eng
Format: epub
ISBN: 9781620970485
Publisher: The New Press

DISCRIMINATORY LAWS

“Every constitution written since the end of World War II includes a provision that men and women are citizens of equal stature. Ours does not. I have three granddaughters. I’d like them to be able to take out their Constitution and say, ‘Here is a basic premise of our system, that men and women are persons of equal stature.’ But it’s not in there. We just have the equal protection clause, which everyone knows was not meant in the 1860s to change anything with regard to women’s status. Women didn’t get to vote until 1920.”1—Supreme Court Justice Ruth Bader Ginsburg (Steve Petteway, courtesy of Collection of the Supreme Court of the United States)

With financial backing from the Laundry Owners’ Association, Curt Muller, who owned a laundry business in Portland at the turn of the twentieth century, appealed his conviction for hiring Emma Gotcher, a female employee, to work more than ten hours in one day. He argued that the law limiting women’s work to ten hours a day interfered with their contract rights. In 1908, the Supreme Court upheld the law, noting that “as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.”2 Historically, discriminatory laws that were passed to protect women were considered beneficial to women.

Men marched for the right to drink beer in Oklahoma, where the sale of 3.2-percent beer to males under twenty-one was prohibited, while females over eighteen were allowed to buy this beer. Curtis Craig, an eighteen-year-old man, together with a licensed vendor of 3.2-percent beer, challenged the law in court, leading to a landmark Supreme Court case in 1976, Craig v. Boren, which heightened the level of review to “intermediate scrutiny” for sex discrimination cases.3

In many of its decisions, the Supreme Court has focused on equal treatment under the Fourteenth Amendment, rather than actual equality between men and women. An equal treatment approach, which is gender neutral, does not factor in the history of discrimination against women. In mandating equal treatment of men and women who are similarly situated, this approach does not effectively address the fact that men and women are generally not similarly situated. The entrenched historical inequality between the sexes cannot be erased by the creation of a level playing field because the players themselves are at two different levels. For the vast majority of women who have substantially less to begin with than men, a level playing field will only serve to keep them at the same lower level. An ERA intended to promote sex equality could help ensure that equal means really equal.

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