Were Women Intended to be protected by the Equal Protection Clause?

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The Equal Protection Clause and Who it Protects

Were Women Intended to be protected by the Equal Protection Clause?

Image Copyright Jewish Women’s Archive (Flickr), 2012

By: Tajanae MallettBio


Section One of the Equal Protection Clause of the United States Constitution states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”1 In addition, the Equal Protection Clause is intended to protect the citizens of the United States from various abuses by the government or private parties. However, there has been recent debate over who is really protected by the Equal Protection Clause. In particular, Justice Scalia argued that women were never expected to be included under the Equal Protection Clause. It is extremely important to future case rulings, legislatures, and citizens to correctly identify who is protected by the laws in the United States. Lastly, the Equal Protection Clause was intended to include and shield women from violations and it important to apply this

standard in a legal manner in order to continue the goals of the originalists that created the U.S. Constitution.

Originalist Approach

When the Equal Protection Clause was created, it was at a time of heightened racial tension between the Northern and Southern states. In addition to the racial tensions of the time, women were not considered to be equals amongst men and were denied a lot of rights that men had. Furthermore, the creators of the Equal Protection Clause believed that women and blacks were property and were not humans.2 However, the creation of the Equal Protection Clause began to make a way for blacks and other underrepresented groups to be protected by the laws that protected their white male counterparts. Lastly, even with the implementation of the Equal Protection Clause, there is still a disparity in its correction of racism but even more so its effect on sexism.3

The historical context in which the Equal Protection Clause was developed was undeniably during a time of slavery and racial discrimination.4 Nevertheless, many politicians and legal scholars believe that like technology and the world, laws evolve to encompass more than what was originally intended to be a part of a law.5 This can be applied to the Equal Protection Clause because now all Americans use it as protection from intrusions and not just African-Americans who were once slaves or their descendents. In comparing sexism with racism, both forms of discrimination adversely affect people and allow for significant disadvantages in education, employment, and healthcare to occur. Furthermore, the struggle that ethnic groups have had for equality is comparable with the plight of women in being considered equals.6

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