Causes of the 14th Amendment to the US Constitution

 In this
paper, I cover several topics. I will support MacKinnon’s ideas on gender
equality, briefly summarize Crenshaw’s discussion
of intersectionality, and provide an analysis of the court’s approach to
gender in at least three cases.
It will be my purpose to propose that each of these cases provide examples
of gender bias that was remedied by the application of the Fourteenth
Amendment. Further, I will use concepts advocated by MacKinnon and Crenshaw
that support the use of the Fourteenth Amendment to reduce the burden of gender
bias in our society.

MacKinnon states,
“If the point of equality law is to end group-­based dominance and
subordination, rather than to recognize sameness or accommodate difference, a
greater priority should be placed on rectifying the legal inequality of groups
that are historically unequal in society, and less solicitude should be accorded
pure legal artifacts or reversals of social fortune.”

In application of this principle, Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986), is a case where
the United States Supreme Court recognized sexual harassment as
a violation of Title VII of the Civil Rights Act of 1964. The case was the
first of its kind to reach the Supreme Court and would redefine sexual
harassment in the workplace. It established the standards for analyzing whether
conduct was unlawful and when an employer would be liable. The court, for the
first time, made sexual harassment an illegal form of discrimination. A review
revealed that the determination of what constitutes “severe or pervasive
conduct” is invariably based on an examination of the totality of
circumstances.

Turner v. Department
of Employment Security, 423 U.S. 44 (1975),
applied to a Utah
statute making pregnant women ineligible for unemployment compensation for a
period extending from 12 weeks before the expected date of childbirth until six
weeks after childbirth. It was held violative of the Due Process Clause of the
Fourteenth Amendment as incorporating a conclusive presumption that women are
unable to work during the 18-week period because of pregnancy and childbirth,
referring to Cleveland Board of Education
v. LaFleur, 414 U. S. 632. The finding of the court states that employers
must achieve legitimate state ends through more individualized means when basic
human liberties are at stake.

Both cases applied
to MacKinnon’s standard stating the desire to “…end group-­based dominance and
subordination, rather than to recognize sameness or accommodate difference,”
and make it a “…greater priority … on rectifying the legal inequality of groups
that are historically unequal in society.” Turner
applied to MacKinnon’s standard of “…less solicitude is accorded pure legal
artifacts,” and to a person’s “… reversals of social fortune,” based on
pregnancy alone.

Crenshaw discussed
the concept of intersectionality.  Crenshaw states that neither Black
liberationist politics nor feminist theory can ignore the intersectional
experiences of those whom the movements claim as their respective constituents.
In order to include Black women, both movements must distance themselves from
earlier approaches in which experiences are relevant only when they are related
to certain clearly identifiable causes. The praxis of both should be centered
on the life chances and life situations of people who should be cared about
without regard to the source of their difficulties.

Crenshaw argues
that in order to reflect the Black community’s needs, one must include an
analysis of sexism and patriarchy. As an example, the panel discussed the
perception of the absent father in the black community. The panel describes a
common stereotypical recommendation from those outside the community is that
one should “marry older men or those with financial stability.” They argue
greater opportunity and financial investment in the black community would solve
many issues, as many younger black males must move about frequently to find
employment. Turner described the
loss of 18 weeks of employment, just because she was pregnant, as unnecessary
and financially crushing. These are all examples used to define the influence
of sexism and patriarchy applied to individuals lives.

Crenshaw further argues
that Feminism must include an analysis of race if it hopes to express the
aspirations of non-white women. One panel member described her experience with
law enforcement when she had hands and feet shackled while in police custody
and she felt she had been left in a cage.  Another described the indifference of law
enforcement upon the accidental shooting death of her child. Another described
how she was separated from her young children while incarcerated and felt that
the children were left unsupervised with no direction from family. The panel
members felt that these biases were not inflicted upon other races of the
population in great numbers. The Vinson case determined
that sexual harassment was multifaceted and variable. The court found that
harassment could be implicit and explicit, with numerous layers of activities
that should be analyzed when determining culpability. These examples were used
as evidence of how systemic harassment influenced the lives of those described.

            Rawls argues that groups who work
on legislation and judiciaries use a hypothetical scenario in which they task
themselves with trying to reach an economic or political structure for society.
He argues that a “veil of ignorance” exists concerning their own lack of
knowledge of how their particular bias effects a just outcome for others.
Edelman argues that organizations adopt a variety of compliance structures in
response, that are more symbolic than substantive.

            In Taylor v. Louisiana, 419 U.S. 522 (1975), the court ruled that
juries could not exclude women from the jury pool. In this case, 53% of the
available population were women and none were selected for the jury pool. This
had both legislative and constitutional issues involved. The court ruled that
women should be available for the pool based on the Fourteenth Amendment.
Edelman’s perspective plays in to the fact that there is a structure for
selection involved, while excluding almost half the population from jury pool,
inserting bias into the system.

            In
Kirchberg v. Feenstra, 450 US 455
(1981), by law, a mortgage placed on a house to pay legal fees did not have to
be discussed with anyone but the male of the household. Joan Feenstra filed a lawsuit arguing that Louisiana’s laws giving
sole control of marital property to the husband were unconstitutional. The
court held that Louisiana’s law lacked an “exceedingly persuasive
justification” for its sex-based classification, and therefore was in
violation of the Equal Protection Clause of the Fourteenth Amendment.
Rawls “veil of ignorance” plays a crucial role in the legislation and also in
the violation of the Fourteenth Amendment. Mills argues that the most marked
cases of injustice, and those which give the tone to the feeling of repugnance
which characterizes the sentiment, are “… wrongful exercise of power over some
one,” or the next are those which consist in “wrongfully withholding from him
something which is his due; in both cases, inflicting on him a positive hurt,
either in the form of direct suffering, or of the privation of some good which
he had reasonable ground, either of a physical or of a social kind, for
counting upon.” In this case, the wrongful exercise of power due to gender bias
created an injustice and would violate Mills perspective.

            Craig
v. Boren, 429 U.S.
190 (1976), was the first case in which a majority of the United States
Supreme Court determined that statutory or administrative sex
classifications were subject to intermediate scrutiny under
the Fourteenth Amendment’s Equal Protection Clause. The Supreme Court was called upon to determine
whether a statute that denied the sale of beer to individuals of the same age based
on their gender violated the Equal Protection Clause. The Court held that the
gender classifications made by the Oklahoma statute were unconstitutional
because the statistics relied on by the state were insufficient to show a
substantial relationship between the statute and the benefits intended to stem
from it. Mills concept of “privatization of goods” applies to this case.

            The Fourteenth Amendment provides in
part that no state shall “deprive any person of life, liberty or property
without due process of law.” This same Amendment also provides that no state
shall “deny to any person within its jurisdiction the equal protection of the
law.”

The concept of a
rational basis review, the rules of Intermediate Scrutiny or the rules of
Strict Scrutiny are important. Rational basis only requires that the challenged
classification promotes a legitimate state interest to be constitutional, and
that the burden is up to the party challenging the legislation to overcome a
strong presumption that the classification is valid. Strict scrutiny is the
highest standard of review which a court will use to evaluate the
constitutionality of governmental discrimination. The disregard of gender in Taylor, Kirchberg and Craig were
found to be invalid under these rules.

The Fourteenth
Amendment to the Constitution provides the protection of fair procedure for the
defendant to guarantee equal legal treatment. Concepts of justice described by
MacKinnon and Crenshaw apply to the cases discussed in this paper. The
Constitution has the utilities to protect the population from gender bias. Used
consistently, it can lead to a more just existence for all.

Bibliography

• Craig v. Boren, 429 U.S. 190 (1976)
• Cleveland Board of Education v. LaFleur, 414 U. S. 632 
• Crenshaw, Demarginalizing the Intersections of Race and Sex.pdf
• Edelman, Legal Discrimination.pdf
• Estrich, Rape, Force & Consent. pdf
• Kirchberg v. Feenstra, 450 US 455 (1981),
• Mill, On the Connection Between Justice and Utility.docx
• MacKinnon, Reflections on Sex Equality.pdf
• Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
• Panel Discussion: Gender, Race, and Incarceration. https://www.c-span. org/video/?316078-1/gender-incarceration
• Rawls, A Theory of Justice.pdf
• Taylor v. Louisiana, 419 U.S. 522 (1975)
• Turner v. Department of Employment Security, 423 U.S. 44 (1975)