Votes for Women, the Constitution and the Courts

“The most fundamental right and obligation is to participate in choosing the people who will make the laws of our country,” Supreme Court Justice Ruth Bader Ginsburg said in the Annenberg Classroom’s award-winning film The 19^th Amendment: A Woman’s Right to Vote. The 19^th Amendment was ratified 100 years ago on August 26, 1920, but the struggle for women’s suffrage began long before that, even prior to the Civil War.

The first women’s rights convention in the United States took place in Seneca Falls, New York in 1848, seeking social, civil, and religious rights for women. The Seneca Falls Convention adopted eleven resolutions called the Declaration of Sentiments written by Elizabeth Cady Stanton. All the resolutions passed unanimously except for the ninth resolution, which demanded the right to vote for women and barely passed.[1]

When the Civil War ended, many “suffragettes”[2] believed the 14^th and 15^th Amendments would finally grant women, including black women, the right to vote.[3] In fact, the 15^th Amendment only gave black men the right. In reality, this was only the beginning of African Americans’ struggle for legal equality, which would continue for more than a century until passage of the Civil Rights Act and Voting Rights Act in the 1960s, and which is still continuing today.

After enactment of the 14^th and 15^th Amendments, suffragists attempted to vote and were prevented from or were arrested after doing so, as, for example, the famous suffragist Susan B. Anthony. The judge in Anthony’s trial held the 14^th Amendment did not give women the vote and directed a verdict of guilty[4].

In 1872, Virginia Minor, a leader of the women’s suffrage movement in Missouri,[5] attempted to register to vote, but was refused on the grounds that she was a woman.[6] The Supreme Court, in Minor v. Happersett,[7] upheld state court decisions in Missouri, which had refused to register a woman as a lawful voter because that state’s laws allowed only men to vote. Nine male justices held that the Equal Protection Clause of the newly passed 14^th Amendment did not guarantee women the right to vote.

With the court’s decision, hopes for a judicial solution to the woman’s suffrage question were dashed. Suffragists turned their efforts toward state-by-state campaigns to change state constitutions to allow women to vote. These efforts were particularly successful in the West, but not so in other parts of the country, especially the South.[8]

In 1900, after nearly 30 years fighting for women’s suffrage, Anthony stepped down as the president of the National American Woman Suffrage Association (NAWSA). Anthony chose as her successor Carrie Chapman Catt, who later founded the League of Women Voters. Chapman Catt devised a plan to win the vote for women by way of constitutional amendment, rather than working for legislative change in each of the separate states.[9] This effort took another 20 years.

Also, around the turn of the century, the movement became more activist in nature. Some suffragists turned to striking and picketing. Activist Alice Paul led a large suffrage parade in 1913 to coincide with and distract from President Woodrow Wilson’s inauguration. Many suffragists were arrested, and some received brutal treatment while in jail.[10] Activists led by Paul also picketed the White House during World War I. Other suffragists were against this militant approach and stayed the more mainstream route, forming political allies. Catt made one such ally of President Woodrow Wilson.[11] Ultimately the combined efforts of both approaches led to the passage of the 19^th Amendment.

Tennessee became the 36^th state to ratify the 19^th Amendment on August 18, 1920, which met the constitutional requirement that an amendment be ratified by three-fourths of the states. The 19^th Amendment became law eight days later, on August 26, a date now recognized nationwide as Women’s Equality Day. The Amendment seemed to grant the right to vote to all women. In reality, however, black women did not realize the right to vote until 45 years later with passage of the Voting Rights Act in 1965,[12] and many still face voter suppression today.[13] Other women of color and indigenous women also were unable to vote until well into the 19^th century.[14]

Of course, the right to vote alone did not give women equal rights. In 1923, suffragist Alice Paul wrote and proposed the Equal Rights Amendment to the Constitution. That proposed amendment to the U.S. Constitution would guarantee equal legal rights for all American citizens regardless of sex. It seeks to end the legal distinctions between men and women in terms of divorce, property, employment, and other matters[15]. According to Justice Ginsburg: “It was to make explicit that among our most basic values is the equal citizenship status of men and women.”[16] Despite numerous attempts, the Equal Rights Amendment has still not been ratified.

In 1972, Congress presented the ERA to the states for ratification, but this stalled and fell three states short of the 38 states needed for ratification by the 1979 deadline. Amid controversy, Congress in 1978 extended the ratification deadline to June 1982. No new states ratified the ERA during its extended deadline, but five states voted to rescind their previous ratification of the proposed amendment.[17] In January 2020, Virginia became the 38^th state to ratify, after Nevada in 2017, and Illinois in 2018, and the following month the House of Representatives voted to remove the original time limit assigned to the ERA. Its proponents argue that the five states’ rescindments are not valid,[18] and legal challenges by its opponents are still pending.[19] Ultimately, the fate of the ERA is in Congress’ hands.[20]

In 1971, nearly 100 years after the decision in Minor, the U.S. Supreme Court’s landmark decision in Reed v. Reed held that the administrators of estates cannot be named in a way that discriminates between sexes.[21] For the first time since the 14th Amendment had gone into effect in 1868, the Court struck down a state law on the grounds that it discriminated against women in violation of the Equal Protection Clause.[22] Ruth Bader Ginsburg, then a young ACLU attorney, was one of the lawyers for the petitioner.

In 1978, Ginsburg wrote in the Harvard Women’s Law Journal: “With the Equal Rights Amendment, we may expect Congress and the state legislatures to undertake in earnest, systematically and pervasively, the law revision so long deferred. And in the event of legislative default, the courts will have an unassailable basis for applying the bedrock principle: All men and all women are created equal.”[23] Forty-two years later, hard-won laws against sex discrimination still do not rest on an absolute constitutional right. As a consequence, women’s equal rights can be inconsistently enforced or even repealed by a simple majority vote. Elements of sex discrimination persist in statutory and case law and courts have had difficulty applying a consistent standard to gender-based classifications. Even 100 years after the enactment of the 19^th Amendment, the effort to ratify the Equal Rights Amendment endures well into the #MeToo era.

[1] NCC Staff, On this day, the Seneca Falls Convention begins, Nat’l Const. Ctr. Blog, Jul. 19, 2019, available at https://constitutioncenter.org/blog/on-this-day-the-seneca-falls-convention-begins

[2] This outdated term is used here only in quotes, and for the rest of the article, the non-gendered “suffragist” term will be used.

[3] Editors, Women’s Suffrage, History.com, Upd. Aug 3, 2020, Orig. Oct. 29, 2009, available at https://www.history.com/topics/womens-history/the-fight-for-womens-suffrage#section_3.

[4] Doug Linder, The Trial of Susan B. Anthony for Illegal Voting, Univ. Miss. Kansas City, Sch. Law (2001) available at http://law2.umkc.edu/faculty/projects/ftrials/anthony/sbaaccount.html.

[5] Norma Basch, Reconstructing Female Citizenship: Minor v. Happersett, in The Constitution, Law, and American Life: Critical Aspects of the Nineteenth-Century Experience, 52–66, Donald G. Nieman, (Ed.), (University of Georgia Press, March 1, 1992).

[6] The Virginia Minor Case, National Park Service, available at https://www.nps.gov/jeff/learn/historyculture/the-virginia-minor-case.htm (last accessed Sept. 4, 2020).

[7] Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875).

[8] Id.

[9] The Fight for Women’s Suffrage, American Experience, PBS available at https://www.pbs.org/wgbh/americanexperience/features/1900-suffrage/ (last accessed Sept. 4, 2020).

1900 saw a changing of the guard among those dedicated to gaining full voting rights for all American women.

[10] Sarah Pruitt, The Night of Terror: When Suffragists Were Imprisoned and Tortured in 1917, History.com, Apr. 17, 2019 (“After peacefully demonstrating in front of the White House, 33 women endured a night of brutal beatings.”) available at https://www.history.com/news/night-terror-brutality-suffragists-19th-amendment.

[11] A crucial element in Chapman Catt’s strategy was changing the NAWSA’s position on the war effort. Originally a pacifist, the shrewd Chapman Catt in 1917 announced that NAWSA supported the war effort, winning influence with politicians and the President through her declaration of loyalty. See, e.g., Did You Know? Alice Paul Versus Carrie Chapman Catt, NATIONAL PARK SERVICE, available at https://www.nps.gov/articles/dyk-alice-paul-carrie-catt.htm (last accessed Sept. 4, 2020); The Presidential Consent of Women’s Suffrage, The History Engine, Univ. Richmond, available at https://historyengine.richmond.edu/episodes/view/6335 (last accessed Sept. 4, 2020).

[12] Glenys Young, The 19th Amendment Did Not Benefit All Women Equally, Texas Tech Today, Aug. 11, 2020, available at https://today.ttu.edu/posts/2020/08/Stories/19th-amendment-did-not-benefit-all-women-equally.

[13] Martha S. Jones, For Black women, the 19th Amendment didn’t end their fight to vote, National Geographic, Aug. 7, 2020, available at https://www.nationalgeographic.com/history/2020/08/black-women-continued-fighting-for-vote-after-19th-amendment (“[T]he battles women fought 100 years ago—for a constitutional right and against segregationist and discriminatory Jim Crow laws in the South—echo in 2020 as American women continue to work against voter suppression and for full access to the polls.”)

[14] See, e.g., Elk v. Wilkins, 112 U.S. 94 (1884) [5 S.Ct. 41, 28 L.Ed. 643] (holding that Native Americans are not citizens of the United States, but of their tribes and, therefore, cannot vote), Trujillo v. Garley (Dist. Ct.

New Mexico 1948) (unreported). No subsequent Supreme Court case has reversed the majority opinion offered on Elk v. Wilkins, including the detailed definitions of the terms of the 14th Amendment as written by Justice Gray. The Elk v. Wilkins opinion remains valid for interpretation of future citizenship issues regarding the 14th Amendment.

[15] Facts about the Amendment are available at https://www.equalrightsamendment.org/

[16] The 19^th Amendment: A Woman’s Right to Vote, Annenberg Classroom, 2019.

[17] Scott Bomboy, Can a dormant proposed constitutional amendment come back to life?, Const. Daily, Nat’l Const. Ctr. (May 31, 2018), available at https://constitutioncenter.org/blog/can-a-dormant-proposed-constitutional-amendment-come-back-to-life.

[18] Robin Bleiweis, The Equal Rights Amendment: What You Need To Know, Ctr. for Am. Progress (Jan. 29, 2020), available at https://www.americanprogress.org/issues/women/reports/2020/01/29/479917/equal-rights-amendment-need-know/.

[19] Alabama, Louisiana, South Dakota v. David S. Ferriero, 7:19-cv-02032-LSC (December 16, 2019), available at https://aboutblaw.com/NE8; Equal Means Equal v. Ferriero, 1:20-cv-10015 (January 7, 2020), available at https://www.archives.gov/files/press/press-releases/2020/equal-means-equal-v.-ferriero-era-complaint-01.07.2020.pdf.

[20] Robert Black, Could the Equal Rights Amendment become a reality?, Const. Daily, Nat’l Const. Ctr. (Jan. 15, 2020), available at https://constitutioncenter.org/blog/could-the-equal-rights-amendment-become-a-reality.

[21] Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251 (1971).

[22] Natalie Wexler, Sex Discrimination – The Search for a Standard, in Supreme Court Decisions And Women’s Rights, Clare Cushman (Ed.), (CQ Press, 2d. Ed., Aug. 10, 2010) available at https://supremecourthistory.org/lc_breaking_new_ground.html.

[23] Ruth Bader Ginsburg, The Equal Rights Amendment Is the Way, 1 Harv. Women’s L.J. 19 (1978).