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It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law.
This chapter invites consideration of Ruth Bader Ginsburg’s 1972 merits brief in Struck v. Secretary of Defense. The brief is little known because the Supreme Court of the United States eventually declined to decide the case. But anyone seeking to understand the origins and nature of Justice Ginsburg’s views on sex discrimination would be well advised to read this brief. So would anyone interested in deepening an appreciation of how the Constitution speaks to gender equality.
In her capacity as general counsel for the Women’s Rights Project of the American Civil Liberties Union, Ginsburg filed the Struck brief a little more than a year after the Court decided Reed v. Reed but before the Court began to shape liberty and equality doctrine concerning the regulation of pregnant women in cases such as Roe v. Wade, Frontiero v. Richardson, and Geduldig v. Aiello. Ginsburg wrote the brief on behalf of an Air Force officer, Captain Susan Struck, whose pregnancy – and whose refusal on religious grounds to have an abortion – subjected her to automatic discharge from military service.
There are no doubt thousands of pathways, direct and indirect, by which constitutions work to enforce and to unsettle the institutions, practices, and understandings that regulate social status of men and women. In this chapter, I consider a few of the more prominent ways that the United States Constitution has served to legitimate and to dismantle social arrangements that sustain inequalities between the sexes.
The U.S. Constitution prohibits government from acting in ways that deny persons within its jurisdiction the equal protection of the laws. This chapter begins with a brief account of how the Supreme Court came to read this clause of the Fourteenth Amendment as a guarantee of equal citizenship for women, over a century after it was first included in the Constitution. It surveys the basic contours of equal protection doctrine, and then considers in more detail how the United States Supreme Court has applied the Equal Protection Clause to questions of sex discrimination in a variety of different practical contexts. The remainder of the essay considers two other bodies of constitutional doctrine that play an especially prominent role in shaping women's lives: privacy doctrines that protect individual decision making about reproduction from state interference, and federalism doctrines that determine the circumstances in which the United States Congress can enact laws that affect family relations.
In general, my account emphasizes description, rather than critical evaluation, of American constitutional law.
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