It’s National Women’s History Month so it seems like a good time to tell you that the words “Equal Justice Under Law,” which are carved in stone on the outside of the Supreme Court building in Washington DC, have never applied to women.
Most women have no idea that they lack full legal equality in the United States. They know they suffer injustice, such as high rates of rape, abuse and sex trafficking, but few understand how these things are caused by the Constitution because it isn’t taught at any grade level.
All students should learn how and why women were intentionally left out of the two most important provisions of the 14th Amendment when it was adopted in 1868 – the part that gave “persons” Equal Protection of the laws and the part that protected voting rights for white men. (Black men abandoned got voting rights in the 15th Amendment.)
You might think women did get Equal Protection rights because the 14th Amendment gave them to “persons,” but you would be wrong. The Supreme Court repeatedly refused to recognize such rights for women. They didn’t even consider women “persons” under the Equal Protection Clause until 1971, and even then, the Court said Women’s Equal Protection rights would be unequally enforced. Think about that. The court gave women unequal equal rights. That’s like offering to split the bill and then only paying the tip.
The idea that a constitutional guarantee of equality for “persons” could somehow be interpreted by the Supreme Court as a guarantee of less than full equality for women is outrageous, and it’s why women have been fighting so hard for the Equal Rights Amendment (ERA). The ERA says that equality of rights cannot be denied by the government on the basis of sex.
Without full Equal Protection rights, government officials in all branches – legislative, executive, and judicial – have legal authority to treat women differently and worse solely because they are female. This is particularly offensive in the United States, where politicians regularly say this is the greatest democracy on earth. To be sure, some countries are worse for women, but they don’t have false promises about “Equal Justice” carved in granite on their courthouses.
The Epstein case alone shows how urgently women need full Equal Protection rights because without them women cannot be protected from even the most inhumane abuses. There are two ways to fix this. One involves simply adding the ERA to the Constitution as our 28th Amendment. It has been ratified and should be in there, but Presidents Trump and Biden both went to court to block it on the grounds that it wasn’t ratified within a time limit set by Congress. Many scholars disagree with them and believe strongly that the ERA is currently valid despite the time limit.
Another option is for women to file lawsuits and ask the courts to rule that women are entitled to full equality because the 14th Amendment gives Equal Protection rights to “persons,” and women are certainly persons. One such lawsuit is currently pending in Massachusetts. It challenges a federal law that requires men to register for the draft, while forbidding women to do the same. The Supreme Court ruled in the 1980s that it was legal to exclude women because they weren’t allowed on the front lines of battle. But they are now, so the Supreme Court will overturn that ruling soon. The question is, will the Court also rule that women deserve full Equal Protection rights on the grounds that no woman should bleed to death in combat as a second-class citizen? They should.
The Supreme Court created women’s inequality so it should fix the problem, but they need a case to do that. The lawsuit in Massachusetts is an ideal opportunity, especially considering that there are two other cases just like it pending in California and New Jersey. Those cases want women to be drafted, but remain second-class citizens. Only the Massachusetts case demands full equality for women. It shouldn’t be difficult for all lawyers to demand full equality for women.
When Plessy v. Ferguson was decided in 1896, it allowed “separate but equal” education of Black children. Decades later, the Supreme Court commendably corrected itself in Brown v. Board of Education. Women are entitled to the same type of correction and they would have had it by now if major women’s groups weren’t useless, especially on the issue of violence against women and inequality.
Think about the Epstein files, and then remember that nearly six women a day are killed by men in the United States. Passing new laws will not help because they would be subject to unequal enforcement when applied to women. It’s like trying to serve crumbs on a broken plate – they just fall through the cracks. We have to fix the plate first.
To do that, we need to mobilize politically in a nonpartisan, incorruptible manner, and we need to use our votes as leverage to hold both parties accountable. We don’t need a lot of money or a fancy ad campaign. We just need enough decent people to agree that the Supreme Court’s false promise of “Equal Justice Under Law” should be draped in black until the statement is true.
