In this
\npaper, I cover several topics. I will support MacKinnon’s ideas on gender
\nequality, briefly summarize Crenshaw’s discussion
\nof intersectionality, and provide an analysis of the court’s approach to
\ngender in at least three cases.
\nIt will be my purpose to propose that each of these cases provide examples
\nof gender bias that was remedied by the application of the Fourteenth
\nAmendment. Further, I will use concepts advocated by MacKinnon and Crenshaw
\nthat support the use of the Fourteenth Amendment to reduce the burden of gender
\nbias in our society.<\/p>\n
MacKinnon states,
\n\u201cIf the point of equality law is to end group-\u00adbased dominance and
\nsubordination, rather than to recognize sameness or accommodate difference, a
\ngreater priority should be placed on rectifying the legal inequality of groups
\nthat are historically unequal in society, and less solicitude should be accorded
\npure legal artifacts or reversals of social fortune.\u201d<\/p>\n
In application of this principle, Meritor Turner v. Department Both cases applied Crenshaw discussed Crenshaw argues Crenshaw further argues <\/em>Rawls argues that groups who work <\/em>In Taylor v. Louisiana<\/em>, 419 U.S. 522 (1975), the court ruled that In Craig The Fourteenth Amendment provides in The concept of a The Fourteenth Bibliography<\/p>\n I will support MacKinnon’s ideas on gender equality, briefly summarize Crenshaw’s discussion of intersectionality, and provide an analysis of the court’s approach to gender in at least three cases. <\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[43],"tags":[84],"class_list":["post-278","post","type-post","status-publish","format-standard","hentry","category-free-law-essaysconstitutional-law","tag-us-law"],"yoast_head":"\n
\nSavings Bank v. Vinson<\/em>, 477 U.S. 57 (1986), is a case where
\nthe United States Supreme Court recognized sexual harassment as
\na violation of Title VII of the Civil Rights Act of 1964. The case was the
\nfirst of its kind to reach the Supreme Court and would redefine sexual
\nharassment in the workplace. It established the standards for analyzing whether
\nconduct was unlawful and when an employer would be liable. The court, for the
\nfirst time, made sexual harassment an illegal form of discrimination. A review
\nrevealed that the determination of what constitutes “severe or pervasive
\nconduct” is invariably based on an examination of the totality of
\ncircumstances. <\/p>\n
\nof Employment Security<\/em>,<\/strong> 423 U.S. 44 (1975),
\napplied to a Utah
\nstatute making pregnant women ineligible for unemployment compensation for a
\nperiod extending from 12 weeks before the expected date of childbirth until six
\nweeks after childbirth. It was held violative of the Due Process Clause of the
\nFourteenth Amendment as incorporating a conclusive presumption that women are
\nunable to work during the 18-week period because of pregnancy and childbirth,
\nreferring to Cleveland Board of Education
\nv. LaFleur<\/em>, 414 U. S. 632. The finding of the court states that employers
\nmust achieve legitimate state ends through more individualized means when basic
\nhuman liberties are at stake. <\/p>\n
\nto MacKinnon\u2019s standard stating the desire to \u201c\u2026end group-\u00adbased dominance and
\nsubordination, rather than to recognize sameness or accommodate difference,\u201d
\nand make it a \u201c\u2026greater priority \u2026 on rectifying the legal inequality of groups
\nthat are historically unequal in society.\u201d Turner<\/em>
\napplied to MacKinnon\u2019s standard of \u201c\u2026less solicitude is accorded pure legal
\nartifacts,\u201d and to a person\u2019s \u201c\u2026 reversals of social fortune,\u201d based on
\npregnancy alone.<\/p>\n
\nthe concept of intersectionality. Crenshaw states that neither Black
\nliberationist politics nor feminist theory can ignore the intersectional
\nexperiences of those whom the movements claim as their respective constituents.
\nIn order to include Black women, both movements must distance themselves from
\nearlier approaches in which experiences are relevant only when they are related
\nto certain clearly identifiable causes. The praxis of both should be centered
\non the life chances and life situations of people who should be cared about
\nwithout regard to the source of their difficulties.<\/p>\n
\nthat in order to reflect the Black community’s needs, one must include an
\nanalysis of sexism and patriarchy. As an example, the panel discussed the
\nperception of the absent father in the black community. The panel describes a
\ncommon stereotypical recommendation from those outside the community is that
\none should \u201cmarry older men or those with financial stability.\u201d They argue
\ngreater opportunity and financial investment in the black community would solve
\nmany issues, as many younger black males must move about frequently to find
\nemployment. Turner<\/em> described the
\nloss of 18 weeks of employment, just because she was pregnant, as unnecessary
\nand financially crushing. These are all examples used to define the influence
\nof sexism and patriarchy applied to individuals lives.<\/p>\n
\nthat Feminism must include an analysis of race if it hopes to express the
\naspirations of non-white women. One panel member described her experience with
\nlaw enforcement when she had hands and feet shackled while in police custody
\nand she felt she had been left in a cage. Another described the indifference of law
\nenforcement upon the accidental shooting death of her child. Another described
\nhow she was separated from her young children while incarcerated and felt that
\nthe children were left unsupervised with no direction from family. The panel
\nmembers felt that these biases were not inflicted upon other races of the
\npopulation in great numbers. The Vinson<\/em> case determined
\nthat sexual harassment was multifaceted and variable. The court found that
\nharassment could be implicit and explicit, with numerous layers of activities
\nthat should be analyzed when determining culpability. These examples were used
\nas evidence of how systemic harassment influenced the lives of those described.<\/p>\n
\non legislation and judiciaries use a hypothetical scenario in which they task
\nthemselves with trying to reach an economic or political structure for society.
\nHe argues that a \u201cveil of ignorance\u201d exists concerning their own lack of
\nknowledge of how their particular bias effects a just outcome for others.
\nEdelman argues that organizations adopt a variety of compliance structures in
\nresponse, that are more symbolic than substantive. <\/p>\n
\njuries could not exclude women from the jury pool. In this case, 53% of the
\navailable population were women and none were selected for the jury pool. This
\nhad both legislative and constitutional issues involved. The court ruled that
\nwomen should be available for the pool based on the Fourteenth Amendment.
\nEdelman\u2019s perspective plays in to the fact that there is a structure for
\nselection involved, while excluding almost half the population from jury pool,
\ninserting bias into the system.<\/p>\n
\nKirchberg v. Feenstra<\/em>, 450 US 455
\n(1981), by law, a mortgage placed on a house to pay legal fees did not have to
\nbe discussed with anyone but the male of the household. Joan Feenstra filed a lawsuit arguing that Louisiana’s laws giving
\nsole control of marital property to the husband were unconstitutional. The
\ncourt held that Louisiana’s law lacked an “exceedingly persuasive
\njustification” for its sex-based classification, and therefore was in
\nviolation of the Equal Protection Clause of the Fourteenth Amendment.
\nRawls \u201cveil of ignorance\u201d plays a crucial role in the legislation and also in
\nthe violation of the Fourteenth Amendment. Mills argues that the most marked
\ncases of injustice, and those which give the tone to the feeling of repugnance
\nwhich characterizes the sentiment, are \u201c\u2026 wrongful exercise of power over some
\none,\u201d or the next are those which consist in \u201cwrongfully withholding from him
\nsomething which is his due; in both cases, inflicting on him a positive hurt,
\neither in the form of direct suffering, or of the privation of some good which
\nhe had reasonable ground, either of a physical or of a social kind, for
\ncounting upon.\u201d In this case, the wrongful exercise of power due to gender bias
\ncreated an injustice and would violate Mills perspective.<\/p>\n
\nv. Boren<\/em>, 429 U.S.
\n190 (1976), was the first case in which a majority of the United States
\nSupreme Court determined that statutory or administrative sex
\nclassifications were subject to intermediate scrutiny under
\nthe Fourteenth Amendment\u2019s Equal Protection Clause. The Supreme Court was called upon to determine
\nwhether a statute that denied the sale of beer to individuals of the same age based
\non their gender violated the Equal Protection Clause. The Court held that the
\ngender classifications made by the Oklahoma statute were unconstitutional
\nbecause the statistics relied on by the state were insufficient to show a
\nsubstantial relationship between the statute and the benefits intended to stem
\nfrom it. Mills concept of \u201cprivatization of goods\u201d applies to this case. <\/p>\n
\npart that no state shall \u201cdeprive any person of life, liberty or property
\nwithout due process of law.\u201d This same Amendment also provides that no state
\nshall \u201cdeny to any person within its jurisdiction the equal protection of the
\nlaw.\u201d <\/p>\n
\nrational basis review, the rules of Intermediate Scrutiny or the rules of
\nStrict Scrutiny are important. Rational basis only requires that the challenged
\nclassification promotes a legitimate state interest to be constitutional, and
\nthat the burden is up to the party challenging the legislation to overcome a
\nstrong presumption that the classification is valid. Strict scrutiny is the
\nhighest standard of review which a court will use to evaluate the
\nconstitutionality of governmental discrimination. The disregard of gender in Taylor,<\/em> Kirchberg<\/em> and Craig<\/em> were
\nfound to be invalid under these rules. <\/p>\n
\nAmendment to the Constitution provides the protection of fair procedure for the
\ndefendant to guarantee equal legal treatment. Concepts of justice described by
\nMacKinnon and Crenshaw apply to the cases discussed in this paper. The
\nConstitution has the utilities to protect the population from gender bias. Used
\nconsistently, it can lead to a more just existence for all.<\/p>\n\n