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JULY 1994

Article 3 - Equal Rights of Men and Women

Constitutional Protections.  The rights enumerated 
in the Covenant and provided by U.S. law are 
guaranteed equally to men and women in the United 
States.  With the adoption in 1920 of the Nineteenth 
Amendment, which guaranteed women the right to vote, 
the principal constitutional impediment to the 
equality of men and women was eliminated.  Over the 
past 30 years, women in the United States have made 
significant strides at gaining social and economic 
equality with men, although further progress needs 
to be made.

As discussed under Article 2, the U.S. Constitution 
explicitly guarantees men and women equality before 
the law through the Equal Protection and Due Process 
Clauses of the Fourteenth and Fifth Amendments.  As 
interpreted by the U.S. Supreme Court, these 
provisions prohibit both the federal government and 
the states from arbitrarily or irrationally 
discriminating on the basis of gender.  For example, 
the Supreme Court has declared unconstitutional a 
state law giving preference to males over females in 
the appointment of administrators for the estates of 
individuals who have died intestate.  Reed v. Reed, 
404 U.S. 71 (1971).  The Court found that the 
preference constituted the  very kind of arbitrary 
choice forbidden in the Equal Protection Clause.   
Id. at 76.

The legal standard by which the U.S. Supreme Court 
has judged gender distinctions has evolved over 
time.  One year after the Reed decision, the court 
ruled that denying benefits for the husbands of 
women in the military, while providing them to the 
wives of similarly situated men in the military, 
violated the Fifth Amendment.  Frontiero v. 
Richardson, 411 U.S. 677 (1973).  The following 
year, however, the Court upheld a sex-based 
distinction in a law that provided a benefit -- a 
property tax exemption -- for widows but not for 
similarly situated widowers.  Kahn v. Shevin, 416 
U.S. 351 (1974).  The Court found that the 
distinction was permissible because it was  
reasonably designed to further the state policy of 
cushioning the financial impact of spousal loss upon 
the sex for which that loss imposes a 
disproportionately heavy burden.   Id. at 355.  

In Craig v. Boren, 429 U.S. 190 (1976), the Court 
articulated the  standard which has governed the 
field of gender distinctions ever since:  "To 
withstand constitutional challenge . . . 
classifications by gender must serve important 
governmental objectives and must be substantially 
related to achievement of those objectives."  429 
U.S. at 197.  See also, Taylor v. Louisiana, 419 
U.S. 522 (1975); Califano v. Goldfarb, 430 U.S. 199 

It is virtually certain that the Supreme Court would 
strike down any significant distinction between men 
and women in the enjoyment of the civil and 
political rights secured by the Covenant, either 
under the substantive right involved or as a matter 
of equal protection.

Equal Rights Amendment (ERA).  An amendment to the 
U.S. Constitution to introduce  a separate "equal 
protection clause" specifically addressing gender 
equality was first proposed in 1923 and thereafter 
in subsequent Congresses.  In 1972, the Equal Rights 
Amendment (ERA) passed the U. S. Congress.  However, 
in the succeeding ten years, an insufficient number 
of states ratified the measure, and it accordingly 
expired in 1982.  Nonetheless, to date sixteen 
states have adopted the ERA as part of their state 
constitutions.  Most of the state ERA s provide 
simply that "[e]quality of rights under the law 
shall not be denied or abridged by the State on 
account of sex."  See, e.g., Colorado, Art. II, 
section 29; Hawaii, Art. I, section 3;  Illinois, 
Art. I, section 18; Maryland, DR 46; New Mexico, 
Art. II, section 18.  Other states have added the 
ERA provision to their broader constitutional equal 
protection clauses.  For example, the Alaska 
Constitution provides that "[n]o person is to be 
denied the enjoyment of any civil or political right 
because of race, color, creed, sex, or national 
origin."  Alaska Art. I, section 3.  See also, 
Connecticut, Art. I, section 20 and Massachusetts, 
Art. LVI. 

Federal Statutes and Programs.  Many federal civil 
rights statutes and programs including those 
discussed under Article 2 address discrimination on 
the basis of sex.

Justice Department Review.  Beginning in 1976, the 
U.S. Department of Justice conducted a review of 
federal statutes and regulations and of the 
policies, practices and procedures of federal 
agencies in order to identify provisions that 
discriminated on the basis of gender.  See Final 
Report of the Attorney General to the President and 
Domestic Policy Council Pursuant to E.O. 12336 
(April 1986).  Most of the statutory provisions 
identified were not substantively discriminatory, 
and the majority of the others had little practical 
impact.  For example, 14 U.S.C.    371-73 provided 
that only  male citizens  could be designated as 
aviation cadets in the U.S. Coast Guard.  Although 
the statute was technically in effect, the aviation 
cadet program to which it applied was no longer 
operated.  The few statutes that did have 
significant sex-based distinctions were subject to 
challenge on constitutional grounds as discussed 
above.  See, e.g., Califano v. Goldfarb, 430 U.S. 
199 (1977).

Family Law.  Family law, discussed in detail with 
respect to Articles 23 and 24, is an area which 
currently invites substantial debate over gender 
equality.  In that field, women have historically 
been discriminated against in terms of the inequity 
which has persisted in the marital relationship and 
in divorce and custody settlements.  Women still 
bear the majority of responsibility for child- 
rearing both within and outside of the marriage 
setting, and often are unable to enforce child-
support orders or alimony awards, resulting in 
poverty or extreme hardship.  However, the 1970's 
ushered in a movement of sweeping reforms, resulting 
in far more equitable marital property, alimony, and 
child custody laws.  These reforms are further 
discussed under Articles 23 and 24.
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