In spite of the words set forth in the Declaration of Independence that "all Men are created equal," the concept of equal treatment under the law was a distant dream in our nation's early years. In fact, the majority of the population had few rights at that time. The framers of the Constitution permitted slavery to continue. Slaves thus were excluded from the political process. Women were also excluded for the most part, as were Native Americans, African Americans who were not slaves, and even white men who did not own property.
Today, in contrast, we have numerous civil rights. Equality is at the heart of the concept of civil rights. Generally, the term civil rights refers to the rights of all Americans to equal protection under the law, as provided for by the Fourteenth Amendment to the Constitution. Although the terms civil rights and civil liberties are sometimes used interchangeably, scholars make a distinction between the two. Civil liberties are basically limitations on government. They specify what the government cannot do. Civil rights, in contrast, specify what the government must do to ensure equal protection and freedom from discrimination.
The history of civil rights in America is the story of a struggle of various groups to be free from discriminatory treatment.
AFRICAN AMERICANS AND THE CONSEQUENCES OF SLAVERY IN THE UNITED STATES
Before 1863, the Constitution protected slavery and made equality impossible in the sense in which we use the word today. The inferior status of African Americans was confirmed just a few years before the outbreak of the Civil War in the infamous Dred Scott v. Sandford case of 1857. The Supreme Court held that slaves and their descendants - even if free - were not citizens of the United States, nor were they entitled to the rights and privileges of citizenship. The Dred Scott decision had grave consequences. Many historians contend that the ruling contributed to making the Civil War inevitable.
Ending Servitude
With the emancipation of the slaves by President Abraham Lincoln's Emancipation Proclamation in 1863 and the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments during the Reconstruction period (1865-1877) following the Civil War, constitutional inequality was ended.
The Thirteenth Amendment (1865) states that neither slavery nor involuntary servitude shall exist within the United States. The Fourteenth Amendment (1868) tells us that all persons born or naturalized in the United States are citizens of the United States. It states, furthermore, that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Note the use of the terms citizen and person in this amendment. Citizens have political rights, such as the right to vote and run for political office. Citizens also have certain privileges or immunities. All persons, however, including noncitizen immigrants, have a right to due process of law and equal protection under the law.
Finally, the Fifteenth Amendment (1870) reads as follows: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."
The Civil Rights Acts of 1865 to 1875
From 1865 to 1875, Congress passed a series of civil rights acts to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments. The Civil Rights Act of 1866 implemented the extension of citizenship to anyone born in the United States and gave African Americans full equality before the law. The act further authorized the president to enforce the law with the national armed forces. The Enforcement Act of 1870 set out specific criminal penalties for interfering with the right to vote as protected by the Fifteenth Amendment and by the Civil Rights Act of 1866.
Equally important was the Civil Rights Act of 1872, known as the Anti-Ku Klux Klan Act. This act made it a federal crime for anyone to use law or custom to deprive an individual of rights, privileges, and immunities secured by the Constitution or by any federal law. The Second Civil Rights Act, passed in 1875, declared that everyone is entitled to full and equal enjoyment of public accommodations, theaters, and other places of public amusement, and it imposed penalties on violators.
The Ineffectiveness of the Early Civil Rights Laws
The Reconstruction statutes, or civil rights acts, ultimately did little to secure equality for African Americans. Both the Civil Rights Cases and the case of Plessy v. Ferguson effectively nullified these acts. Additionally, various barriers were erected that prevented African Americans from exercising their right to vote.
The Civil Rights Cases. The United States Supreme Court invalidated the 1875 Second Civil Rights Act when it held, in the Civil Rights Cases of 1883, that the enforcement clause of the Fourteenth Amendment (which states that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens") was limited to correcting official actions by states. Thus, the discriminatory acts of private citizens were not illegal. ("Individual invasion of individual rights is not the subject matter of the Amendment.") The 1883 Supreme Court decision met with widespread approval throughout most of the United States.
Twenty years after the Civil War, the white majority was all too willing to forget about the Civil War amendments to the U.S. Constitution and the civil rights legislation of the 1860s and 1870s. The other civil rights laws that the Court did not specifically invalidate became dead letters in the statute books, although they were never officially repealed by Congress. At the same time, many former Confederate leaders had regained political power in southern states.
Plessy v. Ferguson: Separate but Equal. A key decision during this period concerned Homer Plessy, a Louisiana resident who was one-eighth African American. In 1892, he boarded a train in New Orleans. The conductor made him leave the car, which was restricted to whites, and directed him to a car for nonwhites. At that time, Louisiana had a statute providing for separate railway cars for whites and African Americans.
Plessy went to court, claiming that such a statute was contrary to the Fourteenth Amendment's equal protection clause. In 1896, the United States Supreme Court rejected Plessy's contention. The Court concluded that the Fourteenth Amendment "could not have been intended to abolish distinctions based upon color, or to enforce social... equality." The Court stated that segregation alone did not violate the Constitution: "Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other." So was born the separate-but-equal doctrine.
Plessy v. Ferguson became the judicial cornerstone of racial discrimination throughout the United States. Even though Plessy upheld segregated facilities in railway cars only, it was assumed that the Supreme Court was upholding segregation everywhere. The result was a system of racial segregation, particularly in the South - supported by state and local "Jim Crow" laws. (Jim Crow was an insulting term for African Americans derived from a song-and-dance show.) These laws required separate drinking fountains; separate seats in theaters, restaurants, and hotels; separate public toilets; and separate waiting rooms for the two races. "Separate" was indeed the rule, but "equal" was never enforced, nor was it a reality.
Voting Barriers. The brief voting enfranchisement of African Americans ended after 1877, when the federal troops that occupied the South during the Reconstruction era were withdrawn. White supremacist politicians regained control of state governments and, using everything except race as a formal criterion, passed laws that effectively deprived African Americans of the right to vote. By using the ruse that political parties were private entities, the Democratic Party managed to keep black voters from its primaries. The white primary was upheld by the Supreme Court until 1944 when, in Smith v. Allwright, the Court ruled it a violation of the Fifteenth Amendment.
Another barrier to African American voting was the grandfather clause, which restricted voting to those who could prove that their grandfathers had voted before 1867. Poll taxes required the payment of a fee to vote. Thus, poor African Americans - as well as poor whites - who could not afford to pay the tax were excluded from voting. Not until the Twenty-fourth Amendment to the Constitution was ratified in 1964 was the poll tax eliminated as a precondition to voting. Literacy tests were also used to deny the vote to African Americans. Such tests asked potential voters to read, recite, or interpret complicated texts, such as a section of the state constitution, to the satisfaction of local registrars - who were, of course, rarely satisfied with the responses of African Americans.
Extralegal Methods of Enforcing White Supremacy. The second-class status of African Americans was also a matter of social custom, especially in the South. In their interactions with southern whites, African Americans were expected to observe an informal but detailed code of behavior that confirmed their inferiority. The most serious violation of the informal code was "familiarity" toward a white woman by an African American man. The code was backed up by the common practice of lynching - mob action to murder an accused individual, usually by hanging and sometimes accompanied by torture. Of course, lynching was illegal, but southern authorities rarely prosecuted these cases, and white juries would not convict.
The End of the Separate-but-Equal Doctrine
As early as the 1930s, several court rulings began to chip away at the separate-but-equal doctrine. The United States Supreme Court did not explicitly overturn Plessy v. Ferguson until 1954, however, when it issued one of the most famous judicial decisions in U.S. history.
In 1951, Oliver Brown decided that his eight-year-old daughter, Linda Carol Brown, should not have to go to an all-nonwhite elementary school twenty-one blocks from her home, when there was a white school only seven blocks away. The National Association for the Advancement of Colored People (NAACP), formed in 1909, decided to support Oliver Brown. The outcome would have a monumental impact on American society.
Brown v. Board of Education of Topeka. The 1954 unanimous decision of the United States Supreme Court in Brown v. Board of Education of Topeka established that the segregation of races in the public schools violates the equal protection clause of the Fourteenth Amendment. Chief Justice Earl Warren said that separation implied inferiority, whereas the majority opinion in Plessy v. Ferguson had said the opposite.
"With All Deliberate Speed." The following year, in Brown v. Board of Education (sometimes called the second Brown decision), the Court declared that the lower courts needed to ensure that African Americans would be admitted to schools on a nondiscriminatory basis "with all deliberate speed." The district courts were to consider devices in their designation orders that might include "the school transportation system, personnel, [and] revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis."
Reactions to School Integration
The white South did not let the Supreme Court ruling go unchallenged. Governor Orval Faubus of Arkansas used the state's National Guard to block the integration of Central High School in Little Rock in September 1957. A federal court demanded that the troops be withdrawn. Finally, President Dwight Eisenhower had to federalize the Arkansas National Guard and send in the Army's 101st Airborne Division to quell the violence. Central High became integrated.
Universities in the South remained segregated. When James Meredith, an African American student, attempted to enroll at the University of Mississippi in Oxford in 1962, violence flared there, as it had in Little Rock. The white riot at Oxford was so intense that President John F. Kennedy was forced to send in 30,000 U.S. combat troops, a larger force than the one then stationed in Korea. There were 375 military and civilian injuries, many from gunfire, and two bystanders were killed. Ultimately, peace was restored, and Meredith began attending classes.
De Jure and De Facto Segregation
The kind of segregation faced by Linda Carol Brown and James Meredith is called de jure segregation, because it is the result of discriminatory laws or government actions. (De jure is Latin for "by law.") A second kind of public school segregation was common in many northern communities - de facto segregation. This term refers to segregation that is not due to an explicit law but results from other causes, such as residential patterns. Neighborhoods inhabited almost entirely by African Americans naturally led to de facto segregation of the public schools.
Discrimination was still involved, however. In many communities, landlords would only rent to African Americans in specific districts, and realtors would not allow them to view houses outside of these zones. In other words, nongovernmental discrimination confined African Americans to all-black districts, which became known as ghettos.
One method used by federal courts in the 1970s and 1980s to address both de jure and de facto segregation in the public schools was to bus students from black neighborhoods into white ones, and vice versa. Busing proved to be enormously unpopular. In the mid-1970s, about three-fourths of all whites opposed the policy, as did almost half of all African Americans. By the 1990s, federal courts were backing away from the practice. The desegregation of U.S. public schools peaked in 1988, and since then the school's have grown more segregated. Indeed, today, school admissions policies that favor minority applicants in an attempt to reduce de facto segregation may end up being challenged on equal protection grounds.
THE CIVIL RIGHTS MOVEMENT
The Brown decisions applied only to public schools. Not much else in the structure of existing segregation was affected. In December 1955, an African American woman, Rosa Parks, boarded a public bus in Montgomery, Alabama. When the bus became crowded, Parks was asked to move to the rear of the bus, the "colored" section. She refused, was arrested, and was fined $10. But that was not the end of the matter. For an entire year, African Americans boycotted the Montgomery bus line. The protest was headed by a twenty-seven-year-old Baptist minister, Dr. Martin Luther King, Jr. In the face of overwhelming odds, the protesters won. In 1956, a federal district court issued an injunction prohibiting the segregation of buses in Montgomery. The era of civil rights protests had begun.
King's Philosophy of Nonviolence
In the following year, 1957, King formed the Southern Christian Leadership Conference (SCLC). King advocated nonviolent civil disobedience as a means to achieve racial justice. The SCLC used tactics such as demonstrations and marches, as well as non-violent, public disobedience of unjust laws. King's followers successfully used these methods to gain wider public acceptance of their cause.
Nonviolent Demonstrations. For the next decade, African Americans and sympathetic whites engaged in sit-ins, freedom rides, and freedom marches. In the beginning, such demonstrations were often met with violence, and the contrasting image of nonviolent African Americans and violent, hostile whites created strong public support for the civil rights movement. When African Americans in Greensboro, North Carolina, were refused service at a Woolworth's lunch counter, they organized a sit-in that was aided day after day by other African Americans and by sympathetic whites. Within six months of the first sit-in at the Greensboro Woolworth's, hundreds of lunch counters throughout the South were serving African Americans. The sit-in technique also was successfully used to integrate interstate buses and their terminals, as well as railroads engaged in interstate transportation.
The March on Washington. In August 1963, African American leaders A. Philip Randolph and Bayard Rustin organized the massive March on Washington for Jobs and Freedom. Before nearly a quarter-million white and African American spectators and millions watching on television, Dr. Martin Luther King, Jr., told the world: "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."
Another Approach - Black Power. Not all African Americans agreed with King's philosophy of nonviolence. Black Muslims and other African American separatists advocated a more militant stance and argued that desegregation should not result in cultural assimilation. During the 1950s and 1960s, when King was spearheading nonviolent protests and demonstrations to achieve civil rights for African Americans, black power leaders such as Malcolm X insisted that African Americans should "fight back" instead of turning the other cheek. Indeed, some would argue that without the fear generated by black militants, a "moderate" such as King would not have garnered such widespread support from white America.
Civil Rights Legislation
Attacks on demonstrators using police dogs, cattle prods, high-pressure water hoses, beatings, and bombings - plus the March on Washington - all led to an environment in which Congress felt compelled to act on behalf of African Americans. The second era of civil rights acts, sometimes referred to as the second Reconstruction period, was under way.
The Civil Rights Act of 1964. The Civil Rights Act of 1964, the most far-reaching bill on civil rights in modern times, banned discrimination on the basis of race, color, religion, gender, or national origin. The major provisions of the act were as follows:
It outlawed arbitrary discrimination in voter registration.
It barred discrimination in public accommodations, such as hotels and restaurants, which have operations that affect interstate commerce.
It authorized the federal government to sue to desegregate public schools and facilities.
It expanded the power of the Civil Rights Commission, which had been created in 1957, and extended its life.
It provided for the withholding of federal funds from programs administered in a discriminatory manner.
It established the right to equality of opportunity in employment.
Title VII of the Civil Rights Act of 1964 is the cornerstone of employment-discrimination law. It prohibits discrimination in employment based on race, color, religion, gender, or national origin. Under Title VII, executive orders were issued that banned employment discrimination by firms that received any federal funding. The 1964 Civil Rights Act created a five-member commission, the Equal Employment Opportunity Commission (EEOC), to administer Title VII.
It was not until June 1972, however, that Congress gave the EEOC to right to sue employers, unions, and employment agencies. Therefore, litigation became an important activity for the agency.
The Voting Rights Act of 1965. As late as 1960, only 29 percent of African Americans of voting age were registered in the southern states, in stark contrast to 61 percent of whites. The Voting Rights Act of 1965 addressed this issue. The act had two major provisions. The first outlawed discriminatory voter-registration tests. The second authorized federal registration of voters and federally administered voting procedures in any political subdivision or state that discriminated electorally against a particular group. The act also provided that certain political subdivisions could not change their voting procedures and election laws without federal approval.
The act targeted counties, mostly in the South, in which fewer than 50 percent of the eligible population were registered to vote. Federal voter registrars were sent to those areas to register African Americans who had been kept from voting by local registrars. Within one week after the act was passed, forty-five federal examiners were sent to the South. A massive voter-registration drive covered the country.
Urban Riots. Even as the civil rights movement was experiencing its greatest victories, a series of riots swept through African American inner-city neighborhoods. The riots were primarily civil insurrections, although these disorders were accompanied by large-scale looting of stores. Inhabitants of the affected neighborhoods attributed the riots to racial discrimination. The riots dissipated much of the goodwill toward the civil rights movement that had been built up earlier in the decade among northern whites. Together with widespread student demonstrations against the Vietnam War (1965-1975), the riots pushed many Americans toward conservatism.
The Civil Rights Act of 1968 and Other Housing Reform Legislation. Martin Luther King, Jr., was assassinated on April 4, 1968. Despite King's message of peace, his death was followed by the most widespread rioting to date. Nine days after King's death, President Lyndon Johnson signed the Civil Rights Act of 1968, which forbade discrimination in most housing and provided penalties for those attempting to interfere with individual civil rights (giving protection to civil rights workers, among others). Subsequent legislation added enforcement provisions to the federal government's rules against discriminatory mortgage-lending practices.
Consequences of Civil Rights Legislation
As a result of the Voting Rights Act of 1965 and its amendments, and the large-scale voter-registration drives in the South, the number of African Americans registered to vote climbed drastically. By 1980, 56 percent of African Americans of voting age in the South were registered. In recent national elections, turnout by African American voters has come very close to the white turnout. In 2008, with an African American on the presidential ballot, African American turnout exceeded that of whites for the first time in history.
Political Participation by African Americans. Today, there are more than ten thousand African American elected officials in the United States. The movement of African American citizens into high elected office has been sure, if exceedingly slow. Notably, recent polling data show that most Americans do not consider race a significant factor in choosing a president. In 1958, when a Gallup poll first asked whether respondents would be willing to vote for an African American as president, only 38 percent of the public said yes. By 2008, this number had reached 94 percent. This high figure may have been attained, at least in part, because of the emergence of African Americans of presidential caliber. Of course, Barack Obama, elected president in 2008 on the Democratic ticket, is African American. Earlier, two Republican African Americans were also mentioned as presidential possibilities: Colin Powell, formerly chair of the Joint Chiefs of Staff and later secretary of state under President George W. Bush; and Condoleezza Rice, who succeeded Powell at the State Department.
Political Participation by Other Minorities. The civil rights movement focused primarily on the rights of African Americans. Yet the legislation resulting from the movement ultimately benefited nearly all minority groups. The Civil Rights Act of 1964, for example, prohibits discrimination against any person because of race, color, or national origin. Subsequent amendments to the Voting Rights Act of 1965 extended its protections to other minorities, including Hispanic Americans (or Latinos), Asian Americans, Native Americans, and Native Alaskans.
The political participation of non-African American minority groups has increased in recent years. Hispanics, for example, have gained political power in several states. Hispanics do not vote at the same rate as African Americans, in large part because many Hispanics are immigrants who are not yet citizens. Still, there are now about five thousand Hispanic elected officials in the United States.
Lingering Social and Economic Disparities. According to recent census data, social and economic disparities between whites and blacks (and other minorities) persist. Data released by the U.S. Census Bureau following the 2010 census showed that mean incomes in black households were only 59 percent of the incomes in non-Hispanic white households, and incomes of Hispanic households were just 69 percent of those of non-Hispanic whites. White adults were also more likely than black and Hispanic adults to have college degrees and to own their own homes. Whites are also less likely to live in poverty. Consider that the poverty rate for non-Hispanic white persons was 9.9 percent, compared with a poverty rate of 27.4 percent for blacks and 26.6 percent for Hispanics. The recent collapse of the housing market also hit minority households much harder than white ones. While median non-Hispanic white households lost 16 percent of their net assets from 2005 to 2009, the figure for African Americans was 53 percent and for Hispanics, 66 percent.
Finally, even today, race consciousness continues to divide African Americans and white Americans. Whether we are talking about media stereotyping, racial profiling, or academic achievement, the black experience is different from the white one. As a result, African Americans often view the nation and many specific issues differently than their white counterparts do. In survey after survey, when blacks are asked whether they have achieved racial equality, few believe that they have. In contrast, whites are much more likely than blacks to believe that racial equality has been achieved.
One of the most troubling contrasts between the races is their differing experiences with the criminal justice system. African Americans, especially men, are far more likely to be arrested and imprisoned than whites. There is widespread disagreement about the reasons for this phenomenon.
CIVIL RIGHTS AND THE UNITED STATES SUPREME COURT
Our modern understanding of civil rights developed over a period of many years, and decisions by the United States Supreme Court were crucial in establishing that understanding. Over time, the Supreme Court developed a series of standards to use when deciding cases of alleged discrimination: strict scrutiny, intermediate scrutiny, and rational basis review.
The Fourteenth Amendment
The Fourteenth Amendment to the U.S. Constitution, adopted in 1869 following the Civil War, is the main constitutional basis for civil rights legislation and court decisions. The due process clause of the Fourteenth Amendment:
No State shall... deprive any person of life, liberty, or property, without due process of law...
This language mirrors that of the Fifth Amendment, which binds the federal government:
No person shall... be deprived of life, liberty, or property, without due process of law...
The due process clause was crucial to extending the civil liberties contained in the Bill of Rights to cover the actions of the individual states. The courts have made use of this clause in civil rights cases as well. As a guarantee of civil rights, however, the next clause in the Fourteenth Amendment is at least as important:
...nor deny to any person within its jurisdiction the equal protection of the laws.
The principal effect of Plessy v. Ferguson was to make the equal protection clause almost a dead letter in cases involving discrimination against individuals. Today, in contrast, the equal protection clause serves as the foundation of a sizable body of law.
Strict Scrutiny and Suspect Classifications
Federal courts use three standards when engaging in judicial review of laws or executive actions. The most exacting of these, strict scrutiny, is employed when fundamental rights are at stake, such as those guaranteed by the Bill of Rights. Strict scrutiny also comes into play when laws are based on a suspect classification. The original suspect class was race. As these terms suggest, the courts are suspicious of, and will strictly scrutinize, any attempt by a government body to treat persons of different races in different ways. A recent study suggested that 70 percent of all legal challenges based on strict scrutiny have succeeded in striking down the law or action in question. Religion and national origin are also suspect classifications. To be acceptable under the strict scrutiny standard, a law must pass three tests:
It must be justified by a compelling government interest. National security is an example of such an interest.
It must be narrowly tailored to meet that interest.
It must be the least restrictive means of accomplishing the goal in question. In other words, restrictions on rights such as freedom of speech must not exceed what is absolutely necessary.
The Supreme Court introduced the standard of strict scrutiny in 1944 in Korematsu v. United States. This was the case in which the Court ruled that the federal government had the right to force West Coast Japanese Americans into detention camps purely on the basis of race. National security was cited as the compelling government interest. The irony could hardly be greater - the Court established the standard of strict scrutiny in the course of approving one of the greatest acts of racial discrimination in American history. In later years, however, the Court would use the standard as a major tool in outlawing racial discrimination. Brown v. Board of Education was only one of many rulings that employed strict scrutiny.
Intermediate, or Exacting, Scrutiny
The women's movement that arose in the 1960s led to a large number of suits claiming that various laws, policies, and government actions improperly discriminated against women. The courts were often sympathetic to such arguments. Still, the Supreme Court was reluctant to define sex or gender as a suspect classification equivalent to race. Instead of extending the standard of strict scrutiny to discrimination against women, the Court established a new standard - intermediate scrutiny - in a 1976 ruling. In that case, the Court ruled that Oklahoma could not ban men from drinking low-alcohol beer until they turned twenty-one, while women were allowed to drink this type of beer at the age of nineteen. In addition to gender, illegitimacy is also a classification subject to intermediate scrutiny.
To pass the intermediate scrutiny test, a law or government action "must further an important government interest by means that are substantially related to that interest." The standard is easier to meet than the three-part standard established for strict scrutiny. In later years, the Court tightened the test by requiring an "exceedingly persuasive justification" for gender-based discrimination. The Court has also come to use the term exacting scrutiny when referring to the standard.
Rational Basis Review
In cases where neither strict scrutiny nor intermediate scrutiny are appropriate, the courts use rational basis review as a standard. This test requires that an action or law be "rationally related" to a "legitimate government interest." The legitimate interest does not have to be the interest cited by the government. If the courts can imagine a possible legitimate interest, the law stands. Rational basis review does not involve assessing the usefulness of laws. As Justice Thurgood Marshall observed on several occasions, "The Constitution does not prohibit legislatures from enacting stupid laws."
If a court can find no legitimate interest at all, however, a law or action can fail even this test. For example, courts have found that certain laws penalizing gay men and lesbians fail the rational basis test. Rational basis review was introduced in a 1938 decision in which the Court affirmed the right of the federal government to ban a dairy product known as filled milk from interstate commerce.
WOMEN'S STRUGGLE FOR EQUAL RIGHTS
Like African Americans and other minorities, women have had to struggle for equality. During the first phase of this struggle, the primary goal of women was to obtain the right to vote.
Early Women's Political Movements
In 1848, Lucretia Mott and Elizabeth Cady Stanton organized the first women's rights convention in Seneca Falls, New York. The three hundred people who attended approved a Declaration of Sentiments: "We hold these truths to be self-evident: that all men and women are created equal." In the following twelve years, groups that supported women's rights held seven conventions in different cities in the Midwest and East.
Women's Suffrage Associations. In 1869, after the Civil War, Susan B. Anthony and Stanton formed the National Woman Suffrage Association. In their view, women's suffrage - the right to vote - was a means to achieve major improvements in the economic and social situation of women in the United States. In other words, the vote was to be used to seek broader goals.
Lucy Stone, however, a key founder of the rival American Woman Suffrage Association, believed that the vote was the only major issue. In 1880, the two organizations joined forces. The resulting National American Woman Suffrage Association had only one goal - the enfranchisement of women - but it made little progress.
The Nineteenth Amendment. The Congressional Union, founded in the early 1900s by Alice Paul, adopted a national strategy of obtaining an amendment to the U.S. Constitution. The Union employed militant tactics. It sponsored large-scale marches and civil disobedience - which resulted in hunger strikes, arrests, and jailings. Finally, in 1920, the Nineteenth Amendment was passed: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." (Today, the word gender is typically used instead of sex.) Although it may seem that the United States was slow to give women the vote, it was really not too far behind the rest of the world.
The Modern Women's Movement
Historian Nancy Cott contends that the word feminism first began to be used around 1910. At that time, feminism meant, as it does today, political, social, and economic equality for women - a radical notion that gained little support at the time.
After gaining the right to vote in 1920, women engaged in little independent political activity until the 1960s. The civil rights movement of that decade resulted in a growing awareness of rights for all groups, including women. Increased participation in the workforce gave many women greater self-confidence. Additionally, the publication of Betty Friedan's The Feminine Mystique in 1963 focused national attention on the unequal status of women in American life.
In 1966, Friedan and others formed the National Organization for Women (NOW). Many observers consider the founding of NOW to be the beginning of the modern women's movement - the feminist movement.
Feminism gained additional impetus from young women who entered politics to support the civil rights movement or to oppose the Vietnam War (1965-1975). Many of them found that despite the egalitarian principles of these movements, women remained in second-class positions. These young women sought their own movement. In the late 1960s, "women's liberation" organizations began to spring up on college campuses. Women also began organizing independent "consciousness-raising groups" in which they discussed how gender issues affected their lives. The new women's movement experienced explosive growth, and by 1970 it had emerged as a major social force.
The Equal Rights Amendment. The initial focus of the modern women's movement was to eradicate gender inequality through a constitutional amendment. The proposed Equal Rights Amendment (ERA), which was first introduced in Congress in 1923 by leaders of the National Women's Party (a successor to the Congressional Union), states as follows: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." For years, the amendment was not even given a hearing in Congress, but finally it was approved by both chambers and sent to the state legislatures for ratification in 1972. The necessary thirty-eight states failed to ratify the ERA within the time period specified by Congress, however. To date, efforts to reintroduce the amendment have not succeeded.
During the national debate over ratification of the ERA, a women's countermovement emerged. Some women perceived the goals pursued by NOW and other liberal women's organizations as a threat to their way of life. One leader of the countermovement was Republican Phyllis Schlafly. The "Stop ERA" campaign of her conservative organization, Eagle Forum, found significant support among fundamentalist religious groups and various other conservative organizations.
Additional Women's Issues. While NOW concentrated on the ERA, a large number of other women's groups, many of them entirely local, addressed a spectrum of added issues. One of these was the issue of domestic violence - that is, assaults within the family. Typically, this meant husbands or boyfriends assaulting their wives or girlfriends. During the 1970s, feminists across the country began opening battered women's shelters to house victims of abuse.
Abortion soon emerged as a key concern. Almost the entire organized women's movement united behind the "freedom-of-choice" position, at the cost of alienating potential women's rights supporters who favored the "right-to-life" position instead. Because abortion was a national issue, the campaign was led by national organizations such as NARAL Pro-Choice America, formerly the National Abortion and Reproductive Rights Action League.
Another issue - pornography - tended to divide the women's movement rather than unite it. While a majority of feminists found pornography demeaning to women, many were also strong supporters of free speech. Others, notably activists Andrea Dworkin and Catharine Mackinnon, believed that pornography was so central to the subjugation of women that First Amendment protections should not apply.
Challenging Gender Discrimination in the Courts. When ratification of the ERA failed, women's rights organizations began a campaign to win national and state laws that would guarantee the equality of women. This more limited campaign met with much success. Women's rights organizations also challenged discriminatory statutes and policies in the federal courts, contending that gender discrimination violated the Fourteenth Amendment's equal protection clause. Employing the exacting scrutiny standard, the United States Supreme Court has invalidated many such statutes and policies. For example, in 1977 the Court held that police and firefighting units cannot establish arbitrary rules, such as height and weight requirements, that tend to keep women from participating in those occupations. In 1983, the Court ruled that life insurance companies cannot charge different rates for women and men.
Congress sought to guarantee equality of treatment in education by passing Title IX of the Education Amendments of 1972, which states: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Title IX's best-known and most controversial impact has been on high school and collegiate athletics, although the original statute made no reference to athletics.
A question that the Supreme Court has not ruled on is whether women should be allowed to participate in military combat. Given that national security is such a compelling government interest, the Court has left this decision up to Congress and the Department of Defense. Recently, women have been allowed to serve as combat pilots and on naval warships. To date, however, they have not been allowed to join infantry direct-combat units, although they are now permitted to serve in combat-support units.
Women in Politics Today
The efforts of women's rights advocates have helped to increase the number of women holding political offices at all levels of government.
Women in Congress. Although a men's club atmosphere still prevails in Congress, the number of women holding congressional seats has increased significantly in recent years. Elections during the 1990s brought more women to Congress than either the Senate or the House had seen before. In 2001, for the first time, a woman was elected to a leadership post in Congress - Nancy Pelosi of California became the Democrats' minority whip in the U.S. House of Representatives. In 2002, she was elected minority leader. In 2006, she was chosen to be the first woman Speaker of the House in the history of the United States - although she was forced to drop back to minority leader again in 2010 when the Republicans regained control of the House.
Women in the Executive and Judicial Branches. In 1984, for the first time, a woman, Geraldine Ferraro, became the Democratic nominee for vice president. In 2008, Hillary Clinton mounted a major campaign for the Democratic presidential nomination, and Sarah Palin became the Republican nominee for vice president. Recent Gallup polls show that close to 90 percent of Americans said they would vote for a qualified woman for president if she was nominated by their party.
Increasing numbers of women are also being appointed to cabinet posts. President George W. Bush appointed several women to cabinet positions, including Condoleezza Rice as his secretary of state in 2005. President Barack Obama named his former rival Hillary Clinton to be secretary of state and added six other women to his cabinet.
Increasing numbers of women are sitting on federal judicial benches as well. President Ronald Reagan (1981-1989) was credited with a historic first when he appointed Sandra Day O'Connor to the United States Supreme Court in 1981. (O'Connor retired in 2006.) President Bill Clinton also appointed a woman, Ruth Bader Ginsburg, to the Court. In 2009, President Obama named Sonia Sotomayor to the Court. She became the third woman and first Hispanic to serve. In 2010, Obama appointed Elena Kagan to the Court, bringing the number of women currently serving on the Court to three.
Around the world, more and more women have succeeded in winning top leadership positions in their national governments.
Gender-Based Discrimination in the Workplace
Traditional cultural beliefs concerning the proper role of women in society continue to be evident not only in the political arena but also in the workplace. Since the 1960s, however, women have gained substantial protection against discrimination through laws that require equal employment opportunities and equal pay.
Title VII of the Civil Rights Act of 1964. Title VII of the Civil Rights Act of 1964 prohibits gender discrimination in employment and has been used to strike down employment policies that discriminate against employees on the basis of gender. In 1978, Congress amended Title VII to expand the definition of gender discrimination to include discrimination based on pregnancy.
Sexual Harassment. The United States Supreme Court has also held that Title VII's prohibition of gender-based discrimination extends to sexual harassment in the workplace. One form of sexual harassment occurs when job opportunities, promotions, salary increases, and the like are given in return for sexual favors. Another form of sexual harassment, called hostile-environment harassment, occurs when an employee is subjected to sexual conduct or comments that interfere with the employee's job performance or are so pervasive or severe as to create an intimidating, hostile, or offensive environment.
Wage Discrimination. Although Title VII and other legislation since the 1960s have mandated equal employment opportunities for men and women, women continue to earn less, on average, than men do.
The Equal Pay Act was enacted in 1963 as an amendment to the Fair Labor Standards Act of 1938. Basically, the Equal Pay Act requires employers to provide equal pay for substantially equal work. In other words, males cannot legally be paid more than females who perform essentially the same job. The Equal Pay Act did not address the fact that certain types of jobs traditionally held by women pay lower wages than the jobs usually held by men. For example, more women than men are salesclerks and nurses, whereas more men than women are construction workers and truck drivers. Even if all clerks performing substantially similar jobs for a company earned the same salaries, they typically would still be earning less than the company's truck drivers.
When Congress passed the Equal Pay Act in 1963, a woman, on average, made 59 cents for every dollar earned by a man. By the mid-1990s, this amount had risen to 75 cents. Figures recently released by the U.S. Department of Labor indicate, though, that since then there has been little change. By 2010, women were still earning, on average, 78 cents for every dollar earned by men.
IMMIGRATION, LATINOS, AND CIVIL RIGHTS
Immigration, and in particular unauthorized immigration, has become one of the hottest political topics under debate. Issues include how we should address the question of unauthorized immigrants. A second major topic is how to limit unauthorized immigration in the first place. Closely allied to these issues are those affecting legal immigrants. Are we admitting too many legal immigrants - or not enough? Are laws restricting the rights of immigrants appropriate - or too tough?
A century ago, most immigrants to the United States came from Europe. Today, however, most come from Latin American and Asia. The large number of new immigrants from Spanish-speaking countries increases the Hispanic portion of the U.S. population. The number of persons who identify themselves as multiracial is also growing due to interracial marriages.
Hispanic versus Latino
To the U.S. Census Bureau, Hispanics can be of any race. They can be new immigrants or members of families that have lived in the United States for centuries. Hispanics may come from any of about twenty primarily Spanish-speaking countries, and as a result, they are a highly diverse population. The four largest Hispanic groups include Mexican Americans, at 65.5 percent of all Hispanics. Puerto Ricans, all of whom are U.S. citizens, constitute 9.1 percent of the total. Salvadorans make up 3.6 percent, and Cuban Americans, 3.5 percent.
The term Hispanic itself, although used by the government, is not particularly popular among Hispanic Americans. Many prefer the term Latino or Latina. When possible, Latinos prefer a name that identifies their heritage more specifically - for example, many Mexican Americans would rather be called that than Latino or Hispanic. Some Mexican Americans prefer the term Chicano.
The Changing Face of America
As a result of immigration, the ethnic makeup of the United States is changing. Yet immigration is not the only factor contributing to changes in the American ethnic mosaic. Another factor is ethnic differences in the fertility rate. The fertility rate measures the average number of children that women in a given group are expected to have over the course of a lifetime. A fertility rate of 2.1 is the "long-term replacement rate." In other words, if a nation or group maintains a rate of 2.1, its population will eventually stabilize. This can take many years, however. Because of past growth, the median age of the population may be younger than it would otherwise be. This means that there are more potential mothers and fathers. Only after its residents age will the population of a group or country stabilize.
Today, the United States actually has a fertility rate of 2.1 children per woman. Hispanic Americans, however, have a current fertility rate of 2.9. African Americans have a fertility rate of 2.1. Non-Hispanic white Americans have a fertility rate of 1.84.
AFFIRMATIVE ACTION
The Civil Rights Act of 1964 prohibited discrimination against any person on the basis of race, color, national origin, religion, or gender. The act also established the right to equal opportunity in employment. A basic problem remained, however: minority groups and women, because of past discrimination, often lacked the education and skills to compete effectively in the marketplace. In 1965, the federal government attempted to remedy this problem by implementing the concept of affirmative action. Affirmative action policies attempt to "level the playing field" by giving special preferences in educational admissions and employment decisions to groups that have been discriminated against in the past.
In 1965, President Lyndon Johnson issued Executive Order 11246, which mandated affirmative action policies to remedy the effects of past discrimination. All government agencies, including those of state and local government, were required to implement such policies. Additionally, affirmative action requirements were imposed on companies that sell goods or services to the federal government and on institutions that receive federal funds, such as universities. Affirmative action policies were also required whenever an employer had been ordered to develop such a plan by a court or by the Equal Employment Opportunity Commission because of evidence of past discrimination. Finally, labor unions that had been found to discriminate against women or minorities in the past were required to establish and follow affirmative action plans.
Affirmative action programs have been controversial because they allegedly result in discrimination against "majority" groups, such as white males (or discrimination against other minority groups that may not be given preferential treatment under a particular affirmative action program). At issue in the current debate over affirmative action programs is whether such programs, because of their discriminatory nature, violate the equal protection clause of the Fourteenth Amendment to the Constitution.
The Bakke Case
The first United States Supreme Court case addressing the constitutionality of affirmative action examined a program implemented by the University of California at Davis. Allan Bakke, a white student who had been turned down for medical school at the Davis campus, discovered that his academic record was better than those of some of the minority applicants who had been admitted to the program. He sued the University of California regents, alleging reverse discrimination. The UC Davis Medical School had held sixteen places out of one hundred for educationally "disadvantaged students" each year, and the administrators at that campus admitted to using race as a criterion for admission to those particular slots.
In 1978, the Supreme Court handed down its decision in Regents of the University of California v. Bakke. The Court did not rule against affirmative action programs. Rather, it held that Bakke must be admitted to the medical school because its admissions policy had used race as the sole criterion for the sixteen "minority" positions. Justice Lewis Powell, speaking for the Court, indicated that while race can be considered "as a factor" among others in admissions (and presumably hiring) decisions, race cannot be the sole factor. So affirmative action programs, but not quota systems, were upheld as constitutional.
Additional Limits on Affirmative Action
A number of cases decided during the 1980s and 1990s placed further limits on affirmative action programs. In a landmark decision in 1995, Adarand Constructors, Inc. v. Pena, the Supreme Court held that any federal, state, or local affirmative action program that uses racial or ethnic classifications as the basis for making decisions is subject to strict scrutiny by the courts. The Court's opinion in the Adarand case means that an affirmative action program cannot make use of quotas or preferences for unqualified persons. In addition, once the program has succeeded in achieving the purpose it was tailored to meet, the program must be changed or dropped.
In 2003, in two cases involving the University of Michigan, the Supreme Court indicated that limited affirmative action programs continued to be acceptable and that diversity was a legitimate goal. The Court struck down the affirmative action plan used for undergraduate admissions at the university, which automatically awarded a substantial number of points to applicants based on minority status. At the same time, it approved the admissions plan used by the law school, which took race into consideration as part of a complete examination of each applicant's background.
The End of Affirmative Action?
Although in 2003 the United States Supreme Court upheld the admissions plan used by the University of Michigan Law School, a Michigan ballot initiative passed in 2006 prohibited affirmative action programs in all public universities and for state government positions. In addition to Michigan, other states, including California, Florida, Nebraska, and Washington, have banned all state-sponsored affirmative action programs. Colorado voters rejected such a ban in 2008, but Oklahoma banned affirmative action in 2012.
In 2007, the United States Supreme Court heard a case involving voluntary integration plans in school districts in Seattle, Washington, and in Louisville, Kentucky. The schools' racial-integration guidelines permitted race to be a deciding factor if, say, two students sought to be admitted to the school and there was space for only one. The schools' policies were challenged by parents of students, most of them white, who were denied admission because of their race. In a close (five-to-four) decision, the Court ruled that the schools' policies violated the Constitution's equal protection clause. (The Court did not, however, go so far as to invalidate the use of race as a factor in admission policies.)
Today, the future of affirmative action programs is in doubt. State attempts to ban such programs are not the greatest threat. Rather, affirmative action faces a possible change of heart by the Supreme Court. It is conceivable that in coming years the Court may find that affirmative action programs can no longer survive the strict scrutiny standard when they are applied to a suspect classification such as race.
SECURING RIGHTS FOR PERSONS WITH DISABILITIES
Persons with disabilities did not fall under the protective umbrella of the Civil Rights Act of 1964. In 1973, however, Congress passed the Rehabilitation Act, which prohibited discrimination against persons with disabilities in programs receiving federal aid. A 1978 amendment to the act established the Architectural and Transportation Barriers Compliance Board. Regulations for ramps, elevators, and the like in all federal buildings were implemented. Congress passed the Education for All Handicapped Children Act in 1975. It guarantees that all children with disabilities will receive an "appropriate" education. The most significant federal legislation to protect the rights of persons with disabilities, however, is the Americans with Disabilities Act (ADA), which Congress passed in 1990.
The Americans with Disabilities Act of 1990
The ADA requires that all public buildings and public services be accessible to persons with disabilities. The act also mandates that employers must reasonably accommodate the needs of workers or potential workers with disabilities. Car rental companies must provide cars with hand controls for disabled drivers. Telephone companies are required to have operators to pass on messages from speech-impaired persons who use telephones with keyboards.
The ADA requires employers to "reasonably accommodate" the needs of persons with disabilities unless to do so would cause the employer to suffer an "undue hardship." The ADA defines persons with disabilities as persons who have physical or mental impairments that "substantially limit" their everyday activities. Health conditions that have been considered disabilities under federal law include blindness, a history of alcoholism, heart disease, cancer, muscular dystrophy, cerebral palsy, paraplegia, diabetes, acquired immune deficiency syndrome (AIDS), and infection with the human immunodeficiency virus (HIV) that causes AIDS.
The ADA does not require that unqualified applicants with disabilities be hired or retained. If a job applicant or an employee with a disability, with reasonable accommodation, can perform essential job functions, however, then the employer must make the accommodation. Required accommodations may include installing ramps for a wheelchair, establishing more flexible working hours, creating or modifying job assignments, and creating or improving training materials and procedures.
Limiting the Scope and Applicability of the ADA
Beginning in 1999, the United States Supreme Court issued a series of decisions that effectively limited the scope of the ADA. In 1999, for example, the Court held in Sutton v. United Airlines, Inc., that a condition (in this case, severe nearsightedness) that can be corrected with medication or a corrective device (in this case, eyeglasses) is not considered a disability under the ADA. In other words, the determination of whether a person is substantially limited in a major life activity is based on how the person functions when taking medication or using corrective devices, not on how the person functions without these measures. Thereafter, the courts held that plaintiffs with bipolar disorder, epilepsy, diabetes, and other conditions do not fall under the ADA's protections if the conditions can be corrected with medication or corrective devices - even if the plaintiffs were discriminated against because of their conditions.
In September 2008, President George W. Bush signed into law the ADA Amendments Act. The legislation overturned limits that the Supreme Court had placed on the ADA. With the exception of eyeglasses, the courts are no longer allowed to consider how a person functions when using "mitigating measures," but must assess whether a person is disabled without such assistance. The new law also struck down a Supreme Court decision that seriously restricted the meaning of "major life activities." In that case, the Court refused to consider carpal tunnel syndrome as a disability because the manual tasks that sufferers were unable to perform did not qualify as a major life activity.
The Supreme Court has also limited the applicability of the ADA by holding that the lawsuits under the ADA cannot be brought against state government employers. In a 2001 case, the Court concluded that states, as sovereigns, are immune from lawsuits brought against them by private parties under the federal ADA.
THE RIGHTS AND STATUS OF GAY MALES AND LESBIANS
On June 27, 1969, patrons of the Stonewall Inn, a New York City bar popular with gay men and lesbians, responded to a police raid by throwing beer cans and bottles because they were angry at what they felt was unrelenting police harassment. In the ensuing riot, which lasted two nights, hundreds of gay men and lesbians fought with police. Before Stonewall, the stigma attached to homosexuality and the resulting fear of exposure had tended to prevent most gay men and lesbians from engaging in activism. In the months immediately after Stonewall, however, "gay power" graffiti began to appear in New York City. The Gay Liberation Front and the Gay Activist Alliance were formed, and similar groups sprang up in other parts of the country.
Growth in the Gay Male and Lesbian Rights Movement
The Stonewall incident marked the beginning of the movement for gay and lesbian rights. Since then, gay men and lesbians have formed thousands of organizations to exert pressure on legislatures, the media, schools, churches, and other organizations to recognize their right to equal treatment.
To a great extent, lesbian and gay groups have succeeded in changing public opinion - and state and local laws - that pertain to their status and rights. Nevertheless, they continue to struggles against age-old biases against homosexuality, often rooted in deeply held religious beliefs, and the rights of gay men and lesbians remain an extremely divisive issue in American society.
State and Local Laws Targeting Gay Men and Lesbians
Before the Stonewall incident, forty-nine states had sodomy laws that made various kinds of sexual acts, including homosexual acts, illegal (Illinois, which had repealed its sodomy law in 1962, was the only exception). During the 1970s and 1980s, more than half of these laws were either repealed or struck down by the courts.
The states - mostly in the South - that resisted the movement to abolish sodomy laws received a boost in 1986 with the Supreme Court decision in Bowers v. Hardwick. In that case, the Court upheld, by a five-to-four vote, a Georgia law that made homosexual conduct between two adults a crime. In 2003, however, the Court reversed its earlier position on sodomy with its decision in Lawrence v. Texas. In this case, the Court held that laws against sodomy violate the due process clause of the Fourteenth Amendment. The Court stated: "The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons." As a result, Lawrence v. Texas invalidated the sodomy laws that remained in the books in fourteen states.
Today, twenty-five states, the District of Columbia, and more than 180 cities and counties have enacted laws protecting lesbians and gay men from discrimination in employment in at least some workplaces. Many of these laws also ban discrimination in housing, in public accommodation, and in other contexts. In contrast, Colorado adopted a constitutional amendment in 1992 to invalidate all state and local laws protecting homosexuals from discrimination. Ultimately, however, the Supreme Court, in Romer v. Evans, ruled against the amendment, because it violated the equal protection clause of the U.S. Constitution by denying to homosexuals in Colorado - but to no other Colorado residents - "the right to seek specific protection of the law."
The Gay Community and Politics
Politicians at the national level have not overlooked the potential significance of homosexual issues in American politics. While conservative politicians generally have been critical of efforts to secure gay and lesbian rights, liberals, by and large, have been speaking out for gay rights in the past thirty years. In 1980, the Democratic platform included a gay plank for the first time.
As of the 2012 elections, six openly gay men, lesbians, or bisexuals were seated in the House of Representatives. Democrat Tammy Baldwin of Wisconsin was the first gay or lesbian member of the Senate. Gay rights groups continue to work for increased political representation in Congress.
Gay Men and Lesbians in the Military
Until recently, the armed forces viewed homosexuality as incompatible with military service. In 1993, however, President Bill Clinton announced a new policy, described as "don't ask, don't tell." Enlistees would not be asked about their sexual orientation, and gay men and lesbians would be allowed to serve in the military so long as they did not declare that they were gay men or lesbians or commit homosexual acts. The new policy was a compromise - Clinton had promised during his presidential campaign to repeal outright the long-standing ban on lesbian and gay military service. Despite the new policy, large numbers of gay men and lesbians were expelled from the military in subsequent years.
During his 2008 presidential campaign, Barack Obama promised to repeal "don't ask, don't tell" and allow lesbians and gay men to serve openly. Obama was slow to carry out his promise. Throughout 2010, Congress failed to act on legislation that would repeal the policy gradually, and Obama did not press the issue. Public opinion was running ahead of the government, however - by December 2010, respondents in a typical public opinion poll supported the right of gay men and lesbians to serve openly by a margin of 77 to 21 percent.
In September 2010, a U.S. district court judge ruled that the ban on open service was unconstitutional and issued an injunction that would prohibit its enforcement. A federal court of appeals than stayed (suspended) the injunction. Faced with the possibility that the courts might force the immediate abolition of "don't ask, don't tell," in December Congress finally passed the gradual repeal legislation that had been tied up for most of 2010. "Don't ask, don't tell" was not completely phased out until later in 2011.
Same-Sex Marriage
One of the hottest political issues today is whether gay and lesbian couples should be allowed to marry. New developments in this area are constant, and several may have taken place by the time you read this text.
Defense of Marriage Act. Controversy over this issue flared up in 1993 when the Hawaii Supreme Court ruled that denying marriage licenses to gay couples might violate the equal protection clause of the Hawaii Constitution. In response, the U.S. Congress passed the Defense of Marriage Act of 1996, which bans federal recognition of lesbian and gay couples and allows state governments to ignore same-sex marriages performed in other states. Ironically, the Hawaii court decision that gave rise to these concerns largely came to naught. In 1998, residents in that state voted for a state constitutional amendment that allows the Hawaii legislature to ban same-sex marriage.
The controversy over gay marriage was further fueled by developments in the state of Vermont. In 1999, the Vermont Supreme Court ruled that gay couples are entitled to the same benefits of marriage as opposite-sex couples. Subsequently, in April 2000, the Vermont legislature passed a law permitting gay and lesbian couples to form "civil unions." The law entitled partners forming civil unions to receive some three hundred state benefits available to married couples, including the rights to inherit a partner's property and to decide on medical treatment fro an incapacitated partner. It did not, however, entitle those partners to receive any benefits allowed to married couples under federal law, such as spousal Social Security benefits. As of 2012, ten states have approved some system of rights for same-sex couples, not counting the nine states (and the District of Columbia) that fully recognize same-sex marriages.
State Recognition of Same-Sex Marriages. Massachusetts was the first state to recognize gay marriage. In 2003, the Massachusetts Supreme Judicial Court ruled that same-sex couples have a right to civil marriage under the Massachusetts state constitution. In 2008, the Connecticut Supreme Court legalized same-sex marriage, and the Iowa Supreme Court issued a similar ruling in 2009. New Hampshire became the first state to legalize such marriages through an act of the legislature, passed in 2009. The Vermont legislature followed later in that year, as did the District of Columbia. The state of New York joined the movement in 2011. The Maryland and Washington legislatures also passed gay marriage bills, but the measures were delayed until after November 6, 2012, when voters in both states endorsed the new laws in referendums.
Two states have abolished existing same-sex marriage rights through referenda. In November 2008, California voters approved Proposition 8, a constitutional amendment that overturned a June 2008 California Supreme Court ruling. Uniquely, same-sex couples married in California from June through November 2008 retain their marriage rights, but no more such marriages may be performed. In Maine, the voters rejected a same-sex marriage law in 2009 but endorsed such a measure in 2012. Thirty-one states now have constitutional amendments now explicitly barring the recognition of same-sex marriage. Same-sex marriage is accepted nationwide in Canada and several other countries.
Same-Sex Marriage and the Federal Courts. As of 2013, almost a dozen cases addressing the constitutionality of the Defense of Marriage Act (DOMA) were working their way through the federal court system. In one of the most important cases, a U.S. district court judge in Massachusetts ruled in 2010 that the provisions of DOMA under which the federal government refuses to recognize same-sex marriages performed by the states are unconstitutional, in part because their sole purpose is to penalize a specific class of persons. If the ruling stands, the U.S. government will have to provide a wide range of benefits to same-sex married persons. A federal appeals court reviewed the ruling in May 2012, and the case is certain to make its way to the United States Supreme Court.
A second ruling by a district court judge in 2010 is surely headed for the Supreme Court as well. In that case, Judge Vaughn Walker held that California's vote to withdraw marriage rights from same-sex couples - Proposition 8 - violated the due process and equal protection clauses of the Fourteenth Amendment. The ruling, if confirmed, would have legalized same-sex marriages in every state. In February 2012, a panel of the ninth Circuit Court of Appeals affirmed the decision but limited its scope decisively. The Ninth Circuit ruled that the constitutional violation consisted of revoking a right that had already been granted. If this decision stands, same-sex marriages would resume in California but would not be required in any state in which such marriages have never been legal.
An interesting detail of the California case is that Judge Walker explicitly based his ruling on the rational basis test. He found, in other words, that the government had no legitimate interest in banning same-sex marriage. In other California cases dealing with DOMA and "don't ask, don't tell," federal courts have applied the intermediate scrutiny test. The appropriate level of scrutiny for ruling on gay and lesbian discrimination cases, therefore, is yet to be determined.
THE RIGHTS AND STATUS OF JUVENILES
Approximately 75 million Americans - about 24 percent of the total population - are under eighteen years of age. Depending on the topic, the definition of child can range from a person under age sixteen to a person under age twenty-one. However defined, children in the United States have fewer rights and protections than adults.
The reason for this lack of rights is the presumption of society that children basically are protected by their parents. This is not to say that children are the property of the parents. Rather, an overwhelming case in favor of not allowing parents to control the actions of their children must be presented before children can be given authorization to act without parental consent (or before the state can be authorized to act on children's behalf without regard to their parents' wishes).
Supreme Court decisions affecting children's rights began a process of slow evolution with Brown v. Board of Education of Topeka, the landmark civil rights case of 1954. In the Brown case, the Court granted children the status of rights-bearing persons. In the 1967 case In re Gault, the Court expressly held that children have a constitutional right to be represented by counsel at the government's expense in a criminal action. Five years later, the Court acknowledged that "children are 'persons' within the meaning of the Bill of Rights. We have held so over and over again."
Voting Rights and the Young
The Twenty-sixth Amendment to the Constitution, ratified on July 1, 1971, reads as follows:
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Before this amendment was ratified, the age at which citizens could vote was twenty-one in most states. One of the arguments used for granting suffrage to eighteen-year-olds was that, because they could be drafted to fight in the country's wars, they had a stake in public policy. At the time, the example of the Vietnam War was paramount. Even though persons between ages eighteen and twenty-one now have the right to vote, their rates of turnout in elections are much lower than the rates posted by older voters.
The Rights of Children in Civil and Criminal Proceedings
Civil law relates to such matters as contracts among private individuals, domestic relations, and business transactions. Criminal law relates to crimes against society that are defined by legislatures and prosecuted by a public official, such as a district attorney. Different procedural rules and judicial safeguards apply under civil and criminal laws.
Civil Rights of Juveniles. The civil rights of children are defined by state laws. The legal definition of majority - the age at which a person is entitled by law to the right to manage his or her own affairs - varies from eighteen to twenty-one years of age, depending on the state. As a rule, an individual who is legally a minor cannot be held responsible for contracts that he or she forms with others. In most states, only contracts entered into for so-called necessaries (things necessary for subsistence, such as food and clothing), can be enforced against minors. Also, when minors engage in negligent behavior, typically their parents are liable. If, for example, a minor destroys a neighbor's fence, the neighbor may bring a suit against the child's parent but not against the child.
Civil law also encompasses the area of child custody. Child-custody rulings traditionally have given little weight to the wishes of the child. Courts have maintained the right to act on behalf of the child's "best interests" but have sometimes been constrained from doing so by the "greater" rights possessed by adults. For instance, a widely publicized Supreme Court ruling awarded legal custody of a two-and-a-half-year-old Michigan resident to an Iowa couple, the child's biological parents. A Michigan couple, who had cared for the child since shortly after her birth and who had petitioned to adopt the child, lost out in the custody battle. The Court agreed that the law allowed it to consider only the parents' rights and not the child's best interests.
Children's rights and their ability to articulate their rights for themselves in custody matters were strengthened, however, by several well-publicized rulings involving older children. In one case, for example, an eleven-year-old Florida boy filed suit in his own name, assisted by his own privately retained legal counsel, to terminate his relationship with his biological parents and to have the court affirm his right to be adopted by foster parents. The court granted his request, although it did not agree procedurally with the method by which the boy initiated the suit.
Criminal Rights of Juveniles. One of the main requirements for an act to be criminal is intent. The law has given children certain defenses against criminal prosecution because of their presumed inability to have criminal intent. Under the common law, children up to seven years of age were considered incapable of committing a crime because they did not have the moral sense to understand that they were doing wrong. Children between the ages of seven and fourteen were also presumed to be incapable of committing a crime, but this presumption could be challenged by showing that the child understood the wrongful nature of the act. Today, states vary in their approaches. Most states retain the common law approach, although age limits vary from state to state. Other states have simply set a minimum age for criminal responsibility.
All states have juvenile court systems that handle children below the age of criminal responsibility who commit delinquent acts. The aim of juvenile courts is allegedly to reform rather than punish. In states that retain the common law approach, children who are above the minimum age but are still juveniles can be turned over to the criminal courts if the juvenile court determines that they should be treated as adults. Children sent to juvenile court do not have the right to trial by jury or to post bail. Also, in most states parents can commit their minor children to state mental institutions without allowing the child a hearing.
Although minors usually do not have the full rights of adults in criminal proceedings, they have certain advantages. In felony, manslaughter, murder, armed robbery, and assault cases, traditionally juveniles were not tried as adults. They were often sentenced to probation or "reform" school for a relatively short term regardless of the seriousness of their crimes. Today, however, most states allow juveniles to be tried as adults (often at the discretion of the judge) for certain crimes, such as murder. When they are tried as adults, they are given due process of law and tried for the crime, rather than being given the paternalistic treatment reserved for a juvenile delinquent. Juveniles who are tried as adults may also face adult penalties. These used to include the death penalty. In 2005, however, the United States Supreme Court ruled that executing persons who were under the age of eighteen when they committed their crimes would constitute cruel and unusual punishment. The Court contended that sixteen- and seventeen-year-olds do not have a fully developed sense of right and wrong, nor do they necessarily understand the full gravity of their misdeeds. In May 2010, the Court also ruled that juveniles who commit crimes in which no one is killed may not be sentenced to life in prison without the possibility of parole.
DID YOU KNOW?
~At the time of the American Revolution, African Americans made up 21 percent of the American population of about 2.5 million.
~Justice John Marshall Harlan, who wrote the only dissent to Plessy v. Ferguson, stated in that very dissent, just a few paragraphs after his now-famous words that our Constitution is "color-blind," that Chinese people are members of "a race so different from our own" that it is permissible to deny them citizenship rights.
~The original Constitution failed to describe the status of citizen or how this status could be acquired.
~By September 1961, more than 3,600 students had been arrested for participating in civil rights demonstrations and 141 students and 58 faculty members had been expelled by colleges and universities for their part in civil rights protests.
~In 1922, at age eighty-seven, Rebecca Latimer Felton was the first and oldest woman to serve in the U.S. Senate - although she was appointed as a token gesture and was allowed to serve only one day.
~Albert Einstein was among six thousand persons in Germany in 1903 who signed a petition to repeal a portion of the German penal code that made homosexuality illegal.
~The United Nations Convention on the Rights of the Child calls for the provision of effective legal assistance for children so that their interests can be "heard directly."
~The first juvenile court in the United States opened in Chicago on July 3, 1899.