Discrimination and the 14th Amendment

Clayton Cramer notes that the 14^th Amendment of the Constitution does not appear to prohibit discrimination against women.

I pointed out that the evidence is quite clear that the primary focus of the 14th Amendment, as demonstrated by statements from both proponents and opponents, was protecting the rights of blacks, and secondarily, the rights of Unionist whites who either already lived in the South, or had moved there after the Civil War. (Amusingly enough, I have seen liberals defend the racism of affirmative action on the grounds that the 14th Amendment was intended to protect blacks--not whites. There's some merit to such an historical analysis, as offensive as the results might turn out to be.)

So, one of the liberals commenting over there decided to show his superiority over me by asking if the 14th Amendment prohibited discrimination based on gender. The answer is very clearly, "No." If it had, there would have been no need for the later amendment to the Constitution granting women the right to vote, and all this discussion of an Equal Rights Amendment a couple of decades back would have been completely pointless.

As late as Goesaert v. Cleary, 335 U.S. 464 (1948), the Supreme Court upheld a Michigan law that prohibited woman from being licensed as bartenders unless they were the wife or daughter of the owner, and decided that this was no violation of equal protection:

The Constitution in enjoining the equal protection of the laws upon States precludes irrational discrimination as between persons or groups of persons in the incidence of a law. But the Constitution does not require situations 'which are different in fact or opinion to be treated in law as though they were the same.' Tigner v. State of Texas, 310 U.S. 141, 147 , 882, 130 A.L.R. 1321.

In short, as long as the statute's distinctions between different women in different situations had some connection to a perceived public need, there was no violation of equal protection--and certainly, the mere fact that the law discriminated against women as a sex was not an equal protection violation.