A “Long and Continuing History” of Discrimination
In Bradwell
v. Illinois (1873), the Supreme Court reasoned that the sentiment that a
woman’s place was exclusively in the home was “so firmly fixed . . . in the
founders of the common law that it became a maxim of that system of
jurisprudence that a woman had no legal existence separate from her husband,
who was regarded as her head and representative in the social state.” The law being challenged in that case was just
one of many that have existed throughout this country’s history based largely
on the fixed notions and sensibilities of the people who write the laws. It is my opinion that when a law exists
primarily to protect such sensibilities, especially those concerning gender or
sexual roles, it is likely to be on fairly thin ground constitutionally.
Some
123 years later, reacting to the Court’s decision in United States v.
Virginia (1996), Phyllis Schlafly complained that “a military institution that functioned with
success, public acceptance, and significant prestige for 157 years”[1]
could suddenly be deemed unconstitutional. Justice Scalia, in his dissenting opinion,
argued that the substantial relation of the Virginia Military Institute’s
single-sex program to the interest of “providing effective college education
for its citizens . . . should be evident enough from the long and continuing
history in this country of [single-sex] colleges,” (VMI). What neither of these individuals acknowledge
is that there was previously a “long and continuing” history of slavery, which
also functioned with “public acceptance” for something like 300 years on this
continent. Scalia’s dissenting opinion
that same year in Romer v. Evans, describes
The
fact is, traditions and fixed sentiments change over time, and that something
was historically deemed appropriate does not mean it has a legitimate place codified
in any official law or policy. In most
cases, prevailing sensibility and traditional mores having to do with gender or
sexuality reflect a power structure which has long been the source of
discrimination against and the oppression of certain segments of society. While women are no longer legally “protected”
against such evils as voting, practicing law, and obtaining a higher education,
there are still laws that seem to exist for no other purpose than to protect
women against the uncontrollable sexuality of the average male.
Many states
have public indecency laws defining a woman’s breasts, but not those of a man,
as a private or sexual area, and even in those states where the wording of such
laws is facially neutral, the application of the laws often serves to make it
illegal for a woman to engage in a behavior deemed perfectly acceptable for men
in most public areas. In his concurring
opinion to the New York Supreme Court’s decision in The People v. Ramona Santorelli and Mary Lou Schloss, Justice Titone states that, “One of the most important
purposes to be served by the equal protection clause is to ensure that ‘public
sensibilities’ grounded in prejudice and unexamined stereotypes do not become
enshrined as part of the official policy of government.” I believe that any law based on
something as intangible and potentially discriminatory as historical sentiment
or traditional social mores need to be seriously questioned. If they are not, the underlying power structure
that has always been a source of oppression and discrimination in this society
will continue to subordinate certain groups of people under those who have the
sentiments and mores in question.