Gender Pay Equality: The Effectiveness of Federal Statutes and Recent U.S. Supreme Court Decisions

By Melconian, Linda J. | Forum on Public Policy: A Journal of the Oxford Round Table, Summer 2010 | Go to article overview
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Gender Pay Equality: The Effectiveness of Federal Statutes and Recent U.S. Supreme Court Decisions


Melconian, Linda J., Forum on Public Policy: A Journal of the Oxford Round Table


"We shall not be safe until the principle of equal rights is written into the framework of our government." (1)

Historical Introduction

United States history has laid a solid foundation for the denial of domestic gender equality. Its founding fathers, forging the great experiment in democracy, systematically excluded women from participating in the common purpose of forming one united country, woven together out of thirteen original, separate and distinct British colonies. First, they denied women a voice in the 1776 deliberations in Philadelphia, culminating in the Declaration of Independence; and they purposely left women out of that famous document which states: "... all men are created equal, ... endowed by their Creator with certain inalienable rights, ... life, liberty, and the pursuit of happiness." (2) Second, the founding fathers excluded women, once again, from participation in the deliberations of the 1787 Constitutional Convention, where the great national experiment in democracy was consummated. The resulting document, the U.S. Constitution, denied all women the right to vote, thus rendering them less than citizens and less than equal in rights attained by their male counterparts at the time. (3)

It took women another 133 years to gain the right to vote, the right to full citizenship participation. Finally, they exercised that right under the law with the 1920 adoption of the Nineteenth Amendment to the U.S. Constitution, which states: "... the right to vote shall not be denied or abridged on account of sex." (4) It remains today the only explicitly articulated Constitutional guarantee of a right held equally by both women and men. (3)

In the 180 years since U.S. ratification of the Nineteenth Amendment, women have made modest gains, especially, in the political arena. For example, they serve as Governors of six states, hold approximately a quarter of state legislative seats, and women have served as mayors in seven of the fifty largest U.S. cities. (6) Today, women serve in all elective offices, and a greater number of women than men voted in the 2008 Presidential election. (7) Yet, these advances have failed to provide women political equality with men.

In the federal arena, Nancy Pelosi presides over the U.S. House of Representatives as Madam Speaker, the first woman to hold that position and third in succession to the Presidency, following the Vice President. (8) However, "No woman has been nominated by a major political party to be President" (9); two women have been nominated to be Vice President--one each from the two major national political parties; and three women have served on the U.S. Supreme Court. Women hold 17% of seats in both the U.S. House of Representatives and U.S. Senate, placing the U.S. Congress at 68th in the world in terms of women's participation in national legislatures. (10)

Constitutional denial of equal citizenship and women's political rights carried over into other areas of legal denial. For years, the U.S. Supreme Court refused to apply interpretations of the Fourteenth Amendment's Equal Protection Clause to gender equality or women's rights. For example, in Strauder v. West Virginia, (11) Ballard v. United States, (12) and Hoyt v. Florida, (13) the

Court continued to allow states to deny Equal Protection to women seeking jury service. Finally, in J.E.B. v. Alabama, the Court struck down the gender discrimination against potential jurors who affirmed their Equal Protection rights to serve on juries. (14)

Refutation until 1920 of full citizenship in the Constitution and Court denial for 100 years of the Fourteenth Amendment's Equal Protection to women who served on juries helped to perpetuate and affirm gender discrimination practices. In Reed v. Reed, (15) the U.S. Supreme Court broke with the century long precedent against Equal Protection for gender discrimination, enabling two other important cases to advance this protection: Fronterio v.

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