Introduction:

“Women and fiction remain, so far as I am concerned, unsolved problems.” – Virginia Woolf, A Room of One's Own

Over the past week, even with New Year’s Eve and Day celebrations, I managed to find the time to read a considerable number of cases ruled on by the SCOTUS with respect to Women’s Rights. I decided to read these cases because I wanted a better understanding of how the law vis-à-vis Women’s Rights has affected our culture and politics.

While there is a plethora of cases one could choose from to investigate such matters, I chose a select few, and even from those (for the sake of this paper’s goals), I set a few to the side. For example, while I had the opportunity to read more about Women’s Reproductive Rights in the United States, I decided that – if I were to investigate such a legal history – those matters were better left alone. I, therefore, predominately investigated cases that dealt with Women’s Rights with respect to labor law and education, for example. While these were cases that may have affected Women’s Rights, they certainly affected far more than just women, as I think will become clear by the end of this paper.

The cases I will be discussing, in order, are as follows: Muller v. Oregon; West Coast Hotel v. Parrish; Phillips v. Martin Marietta Corp; Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations; Johnson v. Santa Clara County of California et al.; and lastly, United States v. Virginia. I will try to make my thoughts on these cases as succinct as possible, as there are quite a few to discuss, and some of the details are not as relevant as the overall conclusions reached by the court or the derivable principles from each case.

Once I have finished discussing the aforementioned cases, I will discuss how the cases weave together to produce a kind of spirit of the law. In other words, I will be discussing how these cases’ conclusions and principles relate to each other to produce an institutional effect. I will then discuss some of the phenomenal effects we can witness today that stem from these rulings, especially if they are still relevant or relevant in essence, if not in practice. Lastly, I would like to try to make some predictions that may be reasonably derived from the spirit of these cases.

While these matters are clearly not going to be as entertaining for some people as a discussion on AI Art or Essays, I think these matters are eminently relevant to the shape of our culture and its everyday goings-on. Now, let us begin our journey through the history of Women’s Rights by starting with the 1908 case of Muller v. The State of Oregon.

 

Muller v. The State of Oregon (1908):

 

Muller v. Oregon is a relatively concise case. The case in question highlights the once central aim of the courts to uphold the rights of States and municipalities to craft laws for themselves. Much like Plessy v. Ferguson, this case heavily relies upon a conception of the 14th amendment that is simply no longer put into practice. Specifically, this case relies on the following phrases, “No state shall make or enforce any law… without due process of law.” It is that last clause, “without due process of law,” that – so highly construable – determines whether a law is constitutional or not.

For a brief, aside from this case, I would simply like to examine the logic of this part of the 14th. The whole phrase is as follows:

"No 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.”

The problem: Some laws do deprive people of their life, liberty, and property, but they only do so with the legal authority of either the Federal Government or local government. However, merely from the wording of the amendment, it is not entirely clear what is meant by “privileges” or “immunities.”

One may easily say that privileges are those rights enumerated in the Bill of Rights. And while this is true, these only constrain the Federal Government. The Bill of Rights was written as a blueprint from which States could individually work within. They do not necessarily have an obligation to uphold the privileges the Federal Government is prohibited from broaching. Most Federal Laws do not Preempt a State’s laws, and as such, States are generally granted the privilege of determining the extent of their citizens’ negative rights and just how far they’re willing to administer the same positive rights for themselves. This interpretation of State Sovereignty and minimal Federal interference was a keystone in early 20th Century and late 19th Century Law, especially following the Civil War. For example, for a very long time in this country, Freedom of Speech wasn’t absolute. There were clear instances, going back to the founding of this country, of municipalities limiting the speech of their citizens.

What exactly is meant by “privileges or immunities” isn’t entirely clear. Citizens of the United States have the right to elect representatives who will create laws that are enacted in the interests of that State's citizens. A State that passes a law limiting this privilege for its citizens seems to be violating the 14th amendment. However, if the citizens wish to elect a representative that will pass obscenity laws, and the vast majority of them wish to do so, are the representatives prohibited from doing so because doing so would potentially violate the 1st amendment right to freedom of expression? Doing so would effectively silence the majority of the populace, abridging their privilege to pass laws according to their will, violating and silencing the will of the people. In short, this first clause seems to be incoherent as it produces absurd – nearly unresolvable – outcomes.

Regardless, for years, the interests and democratic will of the States were respected, and Federal interpretation of a State’s laws seemed to avoid preempting those laws, effectively limiting the extent of the Federal Government. This is precisely the outcome of Muller v. Oregon.

An Oregon law limited the number of hours a woman could work. The issue in question was whether this law was constitutional if it explicitly targeted the number of hours a woman could work. The plaintiff cited Lochner v. New York, arguing that the law violated her right to freely contract for herself. The court ruled that while this law applied to men, it does not necessarily imply that “the difference between the sexes does not justify a different rule respecting a restriction of the hours of labor.” The principle to be found in this case was whether Oregon acted reasonably when it passed a law restricting the woman’s freedom to free contract and define their own hours. By reasonable, I think it is best to interpret this law as follows:

If there is no evidence and sound reasoning that comports to the law, then the law is unreasonable. By sound reasoning, I mean reasoning that adheres to the laws of logic. If the law is reasonable, then there is evidence or sound reasoning that comports to the law.

I.e., the State has the right to restrict freedom of contract, as is stated in the ruling, and one such factor a State may consider when constructing their laws is the sex of those who are contracting. The court rules this to be a reasonable consideration:

“That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.” (italics added)

Physical well-being is the factor under consideration when limiting the number of hours a woman may contract to work, especially when it comes to producing “vigorous offspring.” The court writes quite extensively on these matters, i.e., the differences between Men and Women. Essentially, they hold to the Shaw Principle, which is enumerated in Plessy v. Ferguson. They state the following:

“Even [if] all restrictions on political, personal and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions — having in view not merely her own health, but the well-being of the race — justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all.”

While this view may be considered extremely paternalistic, it is obvious that the court considered the well-being of women, especially with respect to their ability to produce children, to be a concern of the State. In short, a society needs people, and a society may only really be considered a society if the people who built that society actually create some kind of posterity. Otherwise, if they build a society but never produced offspring, then what did they actually create; why would they have created anything like a society in the first place? In other words, the preservation of the American society depended on a woman’s ability to reproduce. The well-being of women being necessary to the continuance of the American race, and the whole of the society, the preservation of a woman’s well-being was considered to be a relevant factor for legislators to consider. Long working hours negatively affected (may still negatively affect) a woman’s well-being; anything that negatively affects a woman’s well-being could be construed as a threat to the stability of the American people, legislators can create laws that ensure the stability of the American people – i.e., women can be subjected to laws that preserve their wellbeing for the stability of the American people and their society. A society unwilling to consider this a relevant factor would become unstable and more likely to collapse, opening itself up to threats from without. Thus, it is obviously reasonable for a society to pass laws that restrict a woman’s freedom for its and their preservation.

Of course, this ruling occurred before the passing of the Civil Rights Act of 1964, so it doesn’t have as much relevance to the contemporary spirit as some later cases clearly will. Yet it will be useful to consider this ruling in light of later rulings, especially like United States v. Virginia. To summarize: this ruling affirmed a State’s right to restrict the freedom of women to contract if doing so threatened their wellbeing, which is a State’s concern; the wellbeing of women leads to healthy offspring, healthier offspring preserve American society and its stability. If the American people were not having healthy children or children at all because the women were working exceedingly long hours or were preoccupied with work, its stability would be threatened; anything that threatens the stability of a State, her people, or the United States may be legislatively restricted. Ergo, a woman’s right to freely contract is the State’s concern and may be legislatively restricted. We shall see that this kind of emphasis on a State’s liberty to pass laws in the interest of its people has been slowly degraded through the 20th Century by cases involving Women’s Rights, at least.

 

West Coast Hotel v. Parrish et al (1937):

 

Much like Muller v. Oregon, West Coast Hotel hinges on the extent to which a State may construct its own laws. At issue is how many hours a woman must maximally work. I.e., a woman may work no more than 48 hours per week. Elsie Parrish took issue with this. She wanted the right to contract with her employer for hours greater than 48 per week. However, in the State of Washington, such conditions were considered “detrimental to their health or morals.” Laws that considered the health and morality of women, and restricted their wages and conditions of labor, had to be reasonable and not detrimental to their health and morality.

At issue is the Due Process clause of the 14th amendment and its meaning. Specifically, both in the Adkins case, which West Coast Hotel overturned and in West Coast Hotel, the cases hinged on the meaning of the Due Process clause. As has previously been shown, the 14th amendment is highly construable and genuinely seems incoherent, i.e., self-contradictory. However, the Court does try to give the Due Process clause a standard:

“In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law… [T]he liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is… subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.” (Italics Added)

The standard, as far as I can tell, is as follows:

If regulation is reasonable with respect to its subject and adopted in the interest of the community, then it meets the due process standard. A law does not meet the due process standard if it isn’t adopted in the interest of the community or isn’t reasonable with respect to its subject. The people have a right to regulate through law their interests, and one of those interests may be the extent any of them may contract with an employer; i.e., freedom of contract is limited by the people with the interests of the people in mind.

The employer is in a position to take advantage of the employable person – the employable person simply is not as free as the employer, so the majority’s argument goes. In citing Holden v. Hardy, they state:

“‘The legislature has also recognized the fact, which the experience of legislators in many States has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employes [sic], while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the legislature may properly interpose its authority.’”

The Court argues that merely because both parties are of age and competent to contract does not mean that the State lacks the ability to interfere with their ability to contract, especially when they do not stand on equal footing. The State may be wielded by the people through the legislature to do the will of the majority, which may limit the rights of the people to contract; a matter which may be the majority's desire. A person, in other words, may be “protected against himself,” especially as concerns public health or stability and security.

Without belaboring the point on the limits of contract negotiation, the State may limit the extent to which its citizens may contract. And as long as those laws are considered to be reasonable and have abided by the Due Process Standard, then the Court will (or at least used to) defer to the States. The matters of each State were (and remain) too complex for a centralized body, removed from the conditions of each States’ citizens, to declare what is best for those citizens. To do so would be (or used to be) considered Federal Overreach. The court clarifies:

“What can be closer to the public interest than the health of women and their protection from unscrupulous and overreaching employers? And if the protection of women is a legitimate end of the exercise of state power, how can it be said that the requirement of the payment of a minimum wage fairly fixed in order to meet the very necessities of existence is not an admissible means to that end? The legislature of the State was clearly entitled to consider the situation of women in employment, the fact that they are in the class receiving the least pay, that their bargaining power is relatively weak, and that they are the ready victims of those who would take advantage of their necessitous circumstances. The legislature was entitled to adopt measures to reduce the evils of the ‘sweating system,’ the exploiting of workers at wages so low as to be insufficient to meet the bare cost of living, thus making their very helplessness the occasion of a most injurious competition.”

The law sought to avoid the exploitation of women and to preserve the ability of needful men to procure jobs to take care of themselves and their families. The people of the State, as far as the Court sees it, shouldn’t have to be burdened with a needful working population, exploited by an employer who has far greater bargaining power than they do.  Justice Sutherland, dissenting, is of a different mindset.

The Dissent argues that the Court is engaging in Judicial Overreach. Yet even I find this argument unconvincing. Specifically, they believe the Constitution, specifically the 14th, is being construed relatively rather than absolutely. However, it is not clear that they have actually violated the Due Process standard set forth in the 14th, and established by the Court, regardless of how incoherent the 14th is. It is also not clear that the employer and employee have the same right, in essence:

“Mr. Justice Harlan, speaking for the court, said, ‘The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell.’”

While this may be true, how does it follow a State may not regulate the extent to which an employee or employer may contract with each other, i.e., how does their regulation violate the Due Process clause? It seems as if the dissent is arguing that any instantiation of regulation regarding employee/employer contracts is itself a violation of the Due Process clause. They do admit that freedom of contract is not “absolute,” which I think is obvious, but they also argue that this right may only be legally violated under “exceptional circumstances.” What is meant by “exceptional circumstances” is never defined precisely. It seems to be a Weasel-Word; a word used to wedge in a subjective construction of the law where there is none or where there need not be one.

While it is true that what is in the interest of the public changes from one generation to the next, and I have stated in the past that words like “Vulgar” effectively have no meaning except for what we individually assign to them, the public interest is not absolutely an arbitrary standard, even if terms like “Vulgar” rely on them. To claim the law here in question is unreasonable, i.e., arbitrary, because it relies on recognizing what the public has an interest in, which seems to misunderstand the legislative process. The people may pass laws, but those laws are not absolute, even if such a term as “forever” is assigned to them; they cannot be seriously construed to mean “forever.” Yet it is the responsibility of the people to change their laws, specifically with regard to whether they’re in their interest.

The Dissent argues that it is the individual who should decide what is enough to keep her health and to preserve her morals (see 409), but this disregards the entire legislative process at both her disposal and the public’s; i.e., they can, through their will, enact change where the employer is unwilling to budge; as a collective (i.e., the public), they can effect a kind of change not possible when they are all atomized individuals. The Dissent fails to consider this political power and right.

The Dissent also argues that the employer is not responsible for the indigency of his employee, but rather that is a duty of the whole and that, as an employer, he’s doing his part to resolve the indigency of the employee and thus is doing more than the whole (410). At first glance, this reasoning seems alluring, but I think there are flaws with it.

The question is whether the public should provide for the indigent where the employer is not. An employer may abuse an employee’s circumstances, thus creating a public burden when they are abused (e.g., unable to fully exert their bargaining power as a single individual). If society as a whole bears this burden, and an employer is part of the society, he has a duty to alleviate it. The employer is a part of the society as a whole, and pays the employee. They need to work to live and thus are dependent on the employer; he obviously has more bargaining power as an individual than she does as an individual. This work, which the employee is required to do to survive or live, may threaten her health or moral standing. The effect of that damage is a cost the society as a whole bears, at the employer’s expense; he effectively can cause the burden the Dissent is arguing everyone else should be responsible for. In other words, the public has an interest in just how far an employer/employee may contract with each other.

The Dissent also argues that it is beyond reason for women to be prevented from bargaining for lower wages while men are not – i.e., this effectively breaches the standard of equality under the law (412 – 413). However, once again, only at first glance does this argument seem enticing.

A basic understanding of maximums and minimums should suffice to understand why it is that Men may be afforded a lower minimum wage than Women. The law can, in effect, be construed as limiting the maximum capacity of the “needful” labor labor-pool. If both men and women are competing simultaneously in this labor pool, the need for both will be greater, and wages will likely be depressed further than they would have been otherwise with the law in place. Where there’s more labor, there’s less demand, less bargaining power, and lower wages. By preventing women from bargaining for lower wages, the wages of needful workers are increased. The wages of needful workers would decrease if both men and women were competing with each other or job opportunities for either would be limited. Though men may be more subjected to the unscrupulous nature of employers under the circumstances upheld by the court, this situation would be exacerbated by the fact that both men and women would be competing with each other, lowering the other’s wages, if it weren’t for the minimum wage law affecting women. It could therefore be reasonably construed that it is in the interest of the public to prevent masses of out-of-labor men or men and women unable to subsist on their daily wages, which the public would be responsible for, to decrease competition for needful men by instantiating a minimum wage for women, even if this subjects men to unscrupulous, harmful, or morally degrading work more so than it does women. In other words, the Dissent seems to be arguing for the right of employers to create and exploit a larger needful-labor labor pool.

All-in-all, we once again see that before the passing of the 1964 Civil Rights Act, States had far greater power to construct laws that governed their citizens than they do contemporarily. In either case (Muller v. Orgon and West Coast Hotel), the rights of both men and women affected each other. The fact that there are clear differences between Men and Women was clearly recognized, and these differences could reasonably be incorporated into the law for the sake of either men or women or the public’s interests. However, this changed significantly with the passing of the 1964 Civil Rights Act.

 

Phillips v. Martin Marietta Corp. (1971):

 

Post-Civil Rights Act, the rulings on Women’s Rights take a substantially different tone and produce significantly different results. Starting with Phillips v. Martin Marietta Corp, the defendant in question is accused of having discriminatory hiring practices. At issue are these two facts: Martin wasn’t hiring women with pre-school age children, and it employed men with pre-school age children. With respect to the Civil Rights Act of 1964, it should be obvious to see that if a company doesn’t hire women because of a certain condition, and that condition is not a bona fide requirement, but it hires men with that same condition, it is engaging in a discriminatory hiring practice.

The court also states in its footnotes:

“The Commission believes that such State laws and regulations, although originally promulgated for the purpose of protecting females, have ceased to be relevant to our technology or to the expanding role of the female worker in our economy. The Commission has found that such laws and regulations do not take into account the capacities, preferences, and abilities of individual females and tend to discriminate rather than protect. Accordingly, the Commission has concluded that such laws and regulations conflict with Title VII of the Civil Rights Act of 1964 and will not be considered a defense to an otherwise established unlawful employment practice or as a basis for the application of the bona fide occupational qualification exception." 29 CFR § 1604.1.”

In other words, everyone, Men and Women alike, is to be treated as individuals. In short, they apply this kind of logic: X are X, some X are Y, but not all X are Y; therefore, you cannot treat all X as Y. Also, X are X, and most X are Y, but not all X are Y. To claim even that most X are Y, and therefore it’s appropriate to treat that X as if it is Y is erroneous; X could be something other than Y. Also, not all X aren’t Y, some X are Y; therefore, we have to accommodate those Xs that are Ys. The logic requires that you simultaneously acknowledge the category X and make it irrelevant. We shall see why this logic, though seemingly sound, is divorced from the tangible and practical reality we experience daily.

 

Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations et al. (1973):

In this case, the Pittsburgh Press was accused of running illegal sex-specific help-waned ads. The City of Pittsburgh presented created an ordinance (the Ordinance) that proscribed discrimination “in employment on the basis of race, color, religion, ancestry, national origins, place of birth, or sex.”

The question the Court ultimately grappled with was whether the ads run by Pittsburgh Press are forms of protected speech or not; specifically, if the speech is commercial advertisement, is it protected? The majority of the court argues that the advertisers in Pittsburgh Press are “likely” discriminating against women in their hiring decisions. The court then assumes that because the advertiser is likely discriminating against women and the newspaper is running ads under the heading “Jobs—Male,” the ads are commercial speech and can be policed. Essentially, because the action is potentially illegal, although it is not proven illegal, the court argues the ads are not protected speech, are commercial speech, and can thus be policed. The court ruled that the Commission’s desire that Pittsburgh Press refrain from placing “sex-designated columns of advertisements for nonexempt job opportunities does not infringe upon [their] First Amendment rights”. The Dissent takes a different position.

Chief Justice Burger’s argument is one of principle; he does not think it’s appropriate for the Court to grant itself the power to define “what layout and organizational decisions of newspapers are ‘sufficiently associated’ with the ‘commercial’ parts of… papers.” He argues that, even if he were to accept the premise that commercial speech could be policed, he would not extend that power “to reach the layout and organization decisions of a newspaper.”

Chief Justice Burger realized that it was not clear whether or not the advertisers, using the paper as a form of advertisement, were illegally discriminating on the basis of sex. There is no reason not to think that the advertisers aren’t complying with the law when they request the paper run a sex-specific advertisement (394). He essentially identifies a major flaw in the Majority’s opinion: just because the advertisers may be illegally discriminating on the basis of sex does not mean that they are and, until proven otherwise, we should thus assume they are not. For the Commission to claim that it should have the ability to “arrange the content of [the Pittsburgh Press’] paper” is unconstitutional. In the Justice’s view (397), the newspaper shouldn’t be “subject to summary punishment for contempt for having made an unlucky legal guess on a particular advertisement or for having failed to secure advance Commission approval of a decision to run an advertisement under a sex-designated column.” In other words, the principle of leniency should be applied because the facts of the case are too vague to penalize the accused.

On principle, Justice Douglas believes the Commission is requesting that Pittsburgh Press reflect “[an ideological view or political creed” specifically of “the dominant philosophy”. He argues that “there can be no valid law censoring the press or punishing it for publishing its views or the views of subscribers or customers who express their ideas in letters to the editor or in want ads or other commercial space.”

Justice Douglas, I believe, makes a rather prophetic statement:

“[W]e have witnessed a growing tendency to cut down the literal requirements of First Amendment freedoms so that those in power can squelch someone out of step. Historically, the miscreant has usually been an unpopular minority. Today it is a newspaper that does not bow to the spreading bureaucracy that promises to engulf us. It may be that we have become so stereotyped as to have earned that fate. But the First Amendment presupposes free-wheeling, independent people whose vagaries include ideas spread across the entire spectrum of thoughts and beliefs.” (italics added)

His allusion to a spreading bureaucracy is precisely what was feared in the first two cases reviewed; i.e., if the court overreached, Federal authority would have extended into States, and the rights of those States and their citizens would be trammeled. It is this spreading bureaucracy that emerges from the 1964 Civil Rights Act that has so utterly pervaded our contemporary institutions.

Justice Stewart’s dissent runs in the same vein:

 “So far as I know, this is the first case in this or any other American court that permits a government agency to enter a composing room of a newspaper and dictate to the publisher the layout and makeup of the newspaper's pages. This is the first such case, but I fear it may not be the last. The camel's nose is in the tent. "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way. . . ." Boyd v. United States, 116 U. S. 616, 635.”

Importantly, Justice Stewart’s argument takes a slightly different tone later on in his dissent:

“It is said that the goal of the Pittsburgh ordinance is a laudable one, and so indeed it is. But, in the words of Mr. Justice Brandeis, ‘Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, wellmeaning [sic] but without understanding.’… ‘[H]istory indicates that urges to do good have led to the burning of books and even to the burning of `witches.’”

While this is merely the opinion of the Justice and has little factual relevance to the case at hand, it gets to the principle of the matter. In short, as I identified, the Civil Rights Act of 1964 (CRA) seems to be capable of violating the rights of everyday Americans by creating a Federal Standard that restricts the privileges and immunities of its citizens for the sake of equality. This is precisely why earlier Courts, no matter how paternalistic, sexist, or racist their ruling might be construed as being, deferred to the States to take such matters into their own hands and construed the 14th to mean just that. Of course, some of these issues seem to stem from the incoherence of the 14th, which (as a close reading of Brown v. BOE demonstrates) seems to be more of a tool of power than a legitimately coherent and meaningful piece of the constitution. Its and the CRA's incoherence are in conflict with the rights, privileges, and immunities of Citizens of the United States, requesting that they deny reality itself. That Court now upholds a municipality’s ability to create a bureaucracy that infringes on the freedom of the press is just one instantiation of this tendency to violate the former constitutional rights of Citizens of the United States and the various sovereign States. 

 

Johnson v. Transportation Agency, Santa Clara County California, et al. (1987):

 

Johnson v. Santa Clara is one more extension of the Civil Rights Act of 1964 and the 14th. The issue is whether the Transportation Agency of Santa Clara County, CA, legally passed over the petitioner, Paul Johnson, promoting a female employee in his stead, Diane Joyce. The question is whether this was a violation of Title VII of the Civil Rights Act of 1964.

Santa Clara County passed an affirmative action plan (the Plan) with the goal of attaining “equitable representation of minorities, women, and handicapped persons” in the workplace. Pursuant to this plan was that companies in Santa Clara were to try to promote women into traditionally segregated job classifications, specifically where they have been underrepresented. The Plan argued that this underrepresentation in jobs not traditionally held by women was the result of “limited opportunities that… existed in the past for them to work in such classification.”

The Court of Appeals for the Ninth Circuit Court argued that Joyce’s hiring was legal as it pertained to the goal of the Plan adopted by the County of Santa Clara, specifically “to address a conspicuous imbalance in the Agency’s work force”. If Johnson hoped to overturn the decision, he had to be able to prove that his employer’s affirmative action program was unconstitutional (627). 

The goal of these affirmative action policies and programs was to break down the old patterns of racial [and sexual] segregation of hierarchy (629). The Court held that in this case, quoting a member of Congress, it would be ironic for legislative efforts to undo those patterns of racial and sexual segregation and hierarchy to be found unlawful. The affirmative action policy put forth by the County of Santa Clara County did not absolutely bar White Men from being hired, but it did make their training, opportunities, and employment contingent upon their overall representation within the population with respect to their representation in the workforce. These kinds of goals were, the Court’s majority argues, crucial to the furthering of Title VII’s purpose “of eliminating the effects of discrimination in the workplace, and that Title VII should not be read to thwart such efforts.”

Here is the logic of the Court as I have come to see it: If Racial and Sexual Segregation Occurred, then there will be evidence of that Racial and Sexual Segregation in the form of Patterns of Racial and Sexual Segregation and Hierarchy. If there is a Pattern of Racial and Sexual Segregation and Hierarchy, then there will be conspicuous imbalances; therefore, if Racial and Sexual Segregation Occurred, there will be conspicuous imbalances.  What the Court claims is that the sufficient condition does not need to be proven by the employer for him to discriminate on the basis of race or sex, specifically against White Men, only that he needs to show conspicuous imbalances. This is effectively like saying if you are in Chicago, Illinois, then you are in the United States. And, you are in the United States; therefore, we can assume you are in Chicago, Illinois, and we do not have to prove otherwise. It is incoherent.

The Agency had been told that a person’s sex or racial makeup with respect to the statistics in question was not to be the sole factor, but it was still a relevant factor. The court argues that “[n]o persons are automatically excluded from consideration; ‘all’ are able to have their qualification weighed against those of other applicants.” However, as the Dissent recognizes, which we will get to shortly, this argument is effectively meaningless. While other qualities besides sex or race are considered, when push comes to shove, when any company has to report back to the EEOC to show how they were sticking to the Plan, they needed to hire people on the basis of their sex and race – the Plan effectively operationalized sexual and racial discrimination against White Men.

The Plan’s goal reflected a “desire to hire, to promote, to give opportunity and training on an equitable, non-discriminatory basis,” unless it discriminated against White Men (then it’s fine). This created two effects, the discrimination of White Men in hiring, promotion, opportunities, and training and the distribution of jobs, promotions, opportunities, and training to women (at least) over men. The latter effect creates a positive feedback wherein, on the basis of sex, women are given greater access to educational training and opportunities, benefits not afforded to men, nor resources sent their way. This increases the overall population with the bona fides to qualify for a particular job and the statistical imbalance that would need to be corrected by discriminating against White Men. This makes competition for those jobs, competition between White Men, even greater than it would be for any group that is given preferential treatment and resources. This also creates a cost that White Men bear more than any other group: if they pay for the opportunities and training required for a bona fide position, while women are given more resources to acquire those opportunities and training without having to pay for them (or without having to pay as much), and the men are less likely to get a job that they trained for on the basis of their race and sex, they are going to suffer greater difficulties for having acquired the bona fides to acquire said position. In other words, there’s no incentive for White Men to become qualified, for even if they were to become qualified workers, they will have greater difficulties finding a job and paying off the training it took to become qualified.

It is important to recognize that this was done under the aim of Title VII, which had the express goal of breaking the patterns (culture) established by racial and sexual segregation and hierarchy, which is only evidenced by statistical imbalances, whose origin need not be demonstrated to be segregation; the mere circular fact that statistical imbalances exist is sufficient to prove that those statistical imbalances are the result of sexual and racial segregation. This kind of circular argument is effectively being used, at this time, as a tool to completely dismantle and reconstitute the culture that existed prior to the CRA.

Justice Steven argues that the conclusion reached by the Ninth Circuit Court of Appeals is valid because it supports the argument that “served the legitimate purpose of creating diversity in a category of employment that had been almost an exclusive province of males in the past.” The Court’s footnotes allude to why they think such fields of employment were exclusive to males: “A plethora of proof is hardly necessary to show that women are generally underrepresented in such positions and that strong social pressures weigh against their participation.” I.e., society has simply pressured women not to take certain jobs. And what is the evidence of this? Statistical Imbalances. I.e., Society pressured women not to take certain jobs, evidenced by statistical imbalances. which evidence the fact that society pressured women not to take certain jobs. The circularity is genuinely a phenomenal sight to behold. Once again, it speaks to the near utter incoherence of the 14th and the CRA.

Justice O’Connor argues that there needs to be a “firm basis” for believing that “remedial action was required.” But what does he mean by “firm basis”? By “firm basis,” he means that there needs to have been a statistical disparity. Of course, going back to our previous circular logic, if there’s discrimination, there’s a statistical disparity, which is both the necessary and sufficient condition for there being discrimination, and if there’s a statistical disparity, there’s a firm basis for remedial action. This effectively creates an excuse for an employer to discriminate against White Men wherever they see a statistical disparity, regardless of whether it was caused by discrimination or not. Not only that, but as previously mentioned, they are liable to the State and Federal Government if they do not account for this statistical disparity.

Effectively, the Transportation Agency discriminated against Johnson, at the behest of the EEOC, despite the fact that a committee of three agency employees wanted to hire him.

Justice White dissents, arguing that the goal of Title VII was to correct for the “intentional and systemic exclusion” of minority groups, such as Black Men. But this limits discrimination to that which can be explicitly identified. It does not take someone with a deep understanding of Theory of Mind to realize that once you make intentional and systematic exclusion that basis for illegal discrimination, those who want to discriminate will do so implicitly. Effectively, this simply isn’t a problem that can be policed. The standard set by the recognition that implicit discrimination can occur, such that there’s a “manifest imbalance between one identifiable group and another in an employer’s labor force,” its clear circularity and incoherence, is once again evidence of the impracticability and inefficiency of the CRA and 14th.  

Justice Scalia valiantly dissents, but obviously to no avail. He makes the argument that the law was operational and procedural and not merely some ideal sought by the County to no effect (659 and 661); he also clearly identifies that sex was “the determining factor” for Joyce’s hiring and Johnson’s exclusion (664); and that the decision is “an enormous expansion [of State and Federal power], undertaken without the slightest justification or analysis” (669). Effectively, as was seen in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations et al., and presaged by Justice Stewart and Justice Douglas, the CRA expanded the bureaucratic authority of the States and Federal government to police the lives of its citizens well beyond what could be considered coherent, logical, or reasonable.

Effectively the CRA and Title VII granted courts the authority to determine for themselves whether a company’s action was an appropriate means for correcting racial or sexual imbalances presumed to be the effect of discrimination or social pressures without any good evidence to demonstrate either. Justice Scalia argues that:

“Weber held that the legality of intentional discrimination by private employers against certain disfavored groups or individuals is to be judged not by Title VII but by a judicially crafted code of conduct, the contours of which are determined by no discernible standard, aside from (as the dissent convincingly demonstrated) the divination of congressional "purposes" belied by the face of the statute and by its legislative history. We have been recasting that self-promulgated code of conduct ever since — and what it has led us to today adds to the reasons for abandoning it.”

The Standard established by the majority is effectively meaningless because it is subjectively determined by any individual judge or set of judges.

This decision allowed politicians to curry the votes of various racial and sexual political constituencies by providing them the means to acquire work by affording them training, opportunities, employment, and promotions not afforded to White Men. It also decreased the costs employers might incur by allowing them to hire less-qualified workers whom they would have to pay less. And at least, it permitted discrimination against White Men in the name of the “politically impotent,” despite the fact that “the Johnsons of the country” are generally unknown, unaffluent and, most importantly, unorganized. It truly was a step towards reshaping the culture, reconstituting the culture, and establishing a new hierarchy, one in which White Men could be discriminated against and afforded fewer opportunities and training, in the name of new ideals: Atomistic Individualism and Equality.

 

United States v. Virginia et al. (1996):

 

The final case I will be analyzing will be United States v. Virginia. The opinion of the Court was delivered by Justice Ginsberg. The matter under examination was whether an all-boys school, Virginia Military Institute (VMI) was justified in prohibiting access to females who might want to attend the school.

In 1990, one female high school student applied to VMI but was denied access. She sued, claiming her 14th amendment rights had been violated. The District Court ruled in favor of VMI at that time. The District Court argued that Women are denied “a unique educational opportunity that is only available at VMI.” However, “the single-sex status [of VMI] would be lost, and some aspects of the school’s distinctive method would be altered” if women were admitted. Personal privacy would have to be considered, physical education standards would have to be lowered or altered, and the adversative model, in general, “could not survive.” Virginia argued that it supported VMI with the aim of ensuring a diverse array of educational opportunities for the young citizens from the State of Virginia.

The Court of Appeals argued that some women could be capable of meeting the physical standards required of the male cadets (a number potentially as low as one). However, the Court of Appeals recognized that VMI’s adversative method would be so altered by the admittance of female cadets that it would alter the essential aims of the institution. As such, the Court of Appeals remanded the case, requiring that Virginia remedy the situation by admitting women to VMI, establishing a parallel institution, or abandoning State support of the institution. The first would undermine VMI’s adversative model, the second, as we will see, is nothing more than a pipe dream, and the latter simply may not have been a genuine legal requirement of the State given the aims of the State. Virginia decided to go with the second option.

The average SAT score for the newly founded Mary Baldwin College of Virginia’s Women’s Institute for Leadership (VWIL) was 100 points lower than the scores of VMI’s freshman. Baldwin’s faculty also held “significantly fewer Ph. D.’s than the faculty at VMI.” The faculty also received “significantly lower salaries.” Mary Baldwin also only offered a bachelor of arts degree, while VMI offered a degree in “liberal arts, the sciences, and engineering.” VWIL students could earn an engineering degree by attending Washington University in St. Louis Missouri “for two years, paying the required private tuition.”

VWIL cadets participated in ‘largely ceremonial’ ROTC programs and did not have the military format its counterpart, VMI, did. VWIL did not require that its students eat meals together or wear uniforms. VWIL also did not apply the adversative model but instead opted for a ‘cooperative [model that] reinforce[d] self-esteem.”

Virginia also claimed it would provide equal financial support for in-state VWIL students and VMI cadets. The VMI foundation also “agreed to supply a $5.4625 million endowment for the VWIL program. “The VMI Alumni Association [had] developed a network of employers interested in hiring VMI graduates. The Association [had agreed] to open its network to VWIL graduates, but those graduates [wouldn’t] have [had] the advantage afforded by a VMI degree.”

The District Court agreed that the changes met the requirements of the Equal Protection Clause. However, the Court of Appeals was divided and, this time, took a greater interest in Virginia’s objectives in deciding to maintain VMI’s sex-specific admittance practices for the sake of diversity. In its conclusion, the Court of Appeals stated, “[e]xclusion of ‘men at Mary Baldwin College and women at VMI’ was essential to Virginia’s purpose, for without such exclusion, the Commonwealth could not ‘accomplish its objective of providing single-gender education.”

The Court of Appeals dissent argued that, even if the two schools are tangibly equal, it is the opportunity of a VMI education that female cadets do not have access to, and it is this lack of opportunity that is being denied them.”

This left the Court with two questions. 1. “[did] Virginia’s exclusion of women from the educational opportunities provided by VMI – extraordinary opportunities for military training and civilian leadership development – deny women ‘capable of all the individual activities required of VMI cadets’ the equal protection of the law guaranteed by the [14th amendment]”; and 2. “If VMI’s ‘unique situation’ – as Virginia’s sole single-sex public institution of higher education – offends the Constitution’s equal protection principle, what is the remedial requirement?”

Justice Ginsberg argues that if the State is to permit or defend “gender-based government action,” it must “demonstrate an exceedingly persuasive justification for that action.” But just what is an exceedingly persuasive justification? It seems that at 533, Justice Ginsberg defines “exceedingly persuasive” as follows.

If a defendant’s argument is “exceedingly persuasive,” then the “State must show 'at least that the [challenged] classification serves important governmental objectives (A) and that the discriminatory means employed are substantially related to the achievement of those objectives (B).’” 

The Court, Justice Ginsberg, argues that the decision to prevent women from attending VMI is an appeal to the ‘inherent differences’ between men and women. She essentially argues that Virginia has failed to demonstrate that VMI’s admission policies are related to important governmental objectives and are substantially related to the achievement of those objectives. She seems to allude to the fact that Virginia’s defense of VMI’s policies is used to create or perpetuate the legal, social, and economic inferiority of women. Any policy appealing to inherent differences between the sexes or races and creating or perpetuating the legal, social, and economic inferiority of women is unlawful. However, this authoritative declaration is effectively irrelevant. It has no bearing on whether the State of Virginia’s defense of VMI’s policies is exceedingly persuasive or (more importantly) if they're pursuant to the Commonwealth's aims.

Justice Ginsberg does admit that “it is uncontested that women’s admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets.” However, Justice Ginsberg argues that because some women (at least one) can meet the physical requirements VMI has, then they should be admitted.

Justice Ginsberg also argues against the use of “generalizations” or “tendencies.” Effectively, the logic of her argument takes this form:

If there is discrimination, then there will be historical patterns of discrimination. Generalizations or assumed tendencies are caused by historical patterns of discrimination. Effectively, discrimination leads to generalizations, or so the argument goes. However, this once again becomes a circular argument when, in the present, we identify generalizations or patterns that reflect historical norms and then assume those are evidence of discrimination. Is there any good reason that the mere existence of a generalization or ‘tendencies’ are the result of past discrimination or that it perpetuates unreasonable discrimination? Justice Ginsberg does not present any. She simply assumes the existence of generalizations is the cause and effect of discrimination. She relies very heavily on an appeal to historical events, which for some may be very emotionally appealing, but is nonetheless logically unsound.

She also argues against the pedagogical merit of VMI’s sex exclusivity. She claims that even if VMI’s method of education was never suited for most women, it also isn’t suited for most men. She also claims that it’s “surprising” Virginia didn’t make VWIL an ‘entirely militaristic experience’ like the one at VMI “on the ground that VWIL ‘is planned for women who do not necessarily expect to pursue military careers.’ She argues that VMI’s program should be considered inappropriate for men “in general or as a group” because ‘[o]nly about 15% of VMI cadets enter career military service.” Virginia’s argument really doesn’t have this kind of logic, however. Virginia effectively argues that if you expect to pursue a military career, then you might want to attend VMI, and only some people who actually pursue a military career went to VMI, or only some people who go to VMI will actually pursue a military career. In other words, only some people who expect to pursue a military career will actually pursue a military career. Her argument simply does not follow from Virginia’s position or her own logic. VMI is a school for men who expect to pursue a military career; VWIL is not. If you expect to pursue a military career, you should be exposed to those conditions. If you do not, why should you be? It is entirely reasonable not to effect an ‘entirely militaristic experience’ for VWIL students because they do not expect to pursue a military career.

Justice Ginsberg effectively argues, without any real clear reasoning, that VMI should accommodate women, change its adversative or doubting method to accommodate some women, which could be as low as n=1, effectively lowering its standards in the process and dissolving the unique experience that VMI offered. Doing so, as you will see, effectively undermines the very concept of unique that Virginia relies upon when she, by supporting VMI, argues for the promotion of diverse educational experiences.

Justice Rehnquist concurs with the Justice Ginsberg’s judgement. He argues that the diversity afforded to VMI is only afforded one sex: “there was single-sex public­ education available for men at VMI, but no corresponding single-sex public education for women.” What both Rehnquist and Ginsberg fail to address are the four private, female-only schools available to women. Justice Rehnquist continues to argue that “[h]ad Virginia made a genuine effort to devote comparable public resources to a facility for women and followed through on such a plan, it might well have avoided an equal protection violation.” He continues by arguing that “a State may have a valid interest in promoting [a single-sex education] methodology, there is no similar evidence in the record that an adversative method is pedagogically beneficial or is any more likely to produce character traits than other methodologies.” He simply fails to recognize that Virginia has a stated aim of providing diverse educational opportunities to its young citizens, and a unique education is one kind of education that, unsupported by the private sector, could be seen as worthy of support by the public sector given the State’s aim is diversity. The mere fact that State does not provide a comparable education to women does not necessarily violate the Equal Protection Clause.

Justice Scalia once again attempts a valiant dissent. He begins by scolding the Court for effectively creating law where the was none. He argues that what Virginia did wasn’t unconstitutional, there were no laws prohibiting Virginia’s actions, and as such, by claiming otherwise, the Court overreached.

Scalia doesn’t inherently have a problem with the kinds of abstract tests the court uses, such as the rational basis test I applied earlier in this paper, but he does have a problem when “whatever abstract tests we… choose to devise… supersede… those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts.” Having government-funded, all-male military schools is “well rooted in the traditions of this country,” he argues, “as [is] the tradition of sending only men into military combat. The people (italics added) may decide to change the one tradition, like the other, through a democratic process; but the assertion that either tradition has been unconstitutional through the centuries is not law,” he validly asserts, “but politics-smuggled-into-law." He argues that the decision the Court reached did not just affect Virginia, but every State in the Union. He concludes the first part of his argument, stating, “This is not the interpretation of a Constitution, but the creation of a new one.”

This last statement is effectively correct, yet this is also what the CRA set out to achieve. It wanted to break the patterns, i.e., the culture, of racial and sexual segregation (so assumed) that had existed and continued to exist prior to and after its passing. This was the stated aim of the CRA recognized by the court in Johnson v. Santa Clara. In other words, the CRA and its Titles effectively gave the legal system the ability to completely overwrite the US Constitution and to reshape America in the CRA’s inheritors’ image.

Justice Scalia recognizes that the majority accurately claims that the sex-specific discrimination deployed by the State must “substantially relate[] to the achievement of [its] objectives.” But instead, it uses the “exceedingly persuasive justification” in its stead. Effectively, the court deceptively supplants the first standard with the second by claiming that as long as “some women are interested in attending VMI, capable of undertaking its activities, and [are] able to meet its physical demands,” then the intermediate scrutiny standard is invalidated and the action is unlawful. Justice Scalia recognizes this standard is not consistent with the Court’s prior rulings.

“[I]n Califano v. Webster, 430 U. S. 313 (1977) (per curiam), we upheld a congressional statute that provided higher Social Security benefits for women than for men. We reasoned that ‘women . . . as such have been unfairly hindered from earning as much as men,’ but we did not require proof that each woman so benefited had suffered discrimination or that each disadvantaged man had not; it was sufficient that even under the former congressional scheme ‘women on the average received lower retirement benefits than men.’ Id., at 318, and n. 5 (emphasis added). The reasoning in our other intermediate-scrutiny cases has similarly required only a substantial relation between end and means, not a perfect fit. In Rostker v. Goldberg, 453 U. S. 57 (1981), we held that selective-service registration could constitutionally exclude women, because even ‘assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans.’ Id., at 81. In Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 579, 582-583 (1990), overruled on other grounds, Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995), we held that a classification need not be accurate ‘in every case’ to survive intermediate scrutiny so long as, ‘in the aggregate,’ it advances the underlying 574*574 objective. There is simply no support in our cases for the notion that a sex-based classification is invalid unless it relates to characteristics that hold true in every instance.”

In other words, the Court is literally making a case out of VMI and Virginia on grounds that it has not found unconstitutional in the past. This is doubly so, as Justice Scalia recognizes, because the defendant had no knowledge of the standard they would be held to (575), and in fact, instead of clarifying the standard, the Court has only muddied the waters wherein it may be found.

Scalia argues for the rational basis standard, a Standard completely ignored by the Court. He then proceeds to argue that the factual basis for Virginia’s support for single-sex education was indeed reasonable but seemingly ignored by the Court. He claims that “Virginia demonstrated at trail that ‘[a] substantial body of contemporary scholarship and research supports the proposition that, although males and females have significant areas of developmental overlap, they also have differing developmental needs that are deepseated [sic].’”

He also very clearly demonstrates that Virginia really did have a rational basis for considering VMI’s discriminatory policy to be an acceptable means of creating educational diversity. “Just as a State may wish to support junior colleges, vocational institutes, or a law school that emphasizes case practice instead of classroom study, so too [may] a State’s decision to maintain within its system one school that provides the adversative method [be] ‘substantially related’ to its goal of a good education,” a goal entirely up to the State to define, as I have discussed previously. Effectively Virginia’s options were exclusive to each other: a method that supports the adversative method excluding women or none at all; the adversative method is simply not compatible with women.

However, Justice Scalia also recognizes that, as a merely practical matter, Virginia made the right decision. “[Her] financial resources, like any State’s, are not limitless, and the Commonwealth must select among the available options. Virginia thus has decided to fund, in addition to some 14 coeducational 4-year colleges, one college that is run as an all-male school on the adversative model: [VMI].” This also comports to the Commonwealth’s principle that “[h]igher education resources should be viewed as a whole – public and private’ (emphasis added)’ – because such an approach enhances diversity and because ‘it is academic and economic waste to permit unwarranted duplication.” With this principle in mind, Justice Scalia then highlights the fact that there are already four all-female private schools in Virginia. There was only one all-male private school. With this in mind, Justice Scalia justifiably states that “Virginia’s election to fund one public all-male institution and one on the adversative model… is substantially related to the Commonwealth’s important educational interests.” The intermediate scrutiny standard should have been upheld and VMI should have been permitted to continue its practices.

Justice Scalia, also identifies the fact that Justice Ginsberg effectively applies a totally circular form of logic to justify that the generalization used to argue for VMI’s sex-specific pedagogical interests. He argues that the mere funding of a school that has sex-specific discrimination does not itself demonstrate the continued traditional beliefs one might infer from the historical mythos they’ve constructed about the society they live within. Nor does it give them the right to impose that historical mythos upon the present and to claim any pattern resembling its form is evidence of the presence or perpetuation of its form.

One consequence of the decision is as follows:

“The Court's analysis at least has the benefit of producing foreseeable results. Applied generally, it means that whenever a State's ultimate objective is "great enough to accommodate women" (as it always will be), then the State will be held to have violated the Equal Protection Clause if it restricts to men even one means by which it pursues that objective—no matter how few women are interested in pursuing the objective by that means, no matter how much the single-sex program will have to be changed if both sexes are admitted, and no matter how beneficial that program has theretofore been to its participants.”

In effect, it is Men, not Women, who are excluded from their spaces if only one woman wishes to join in. The costs of arguing otherwise, for any male-only organizations, is simply too great.

Justice Scalia rightly argues that the Majority’s position that there are no “benefits” to the adversative method is really just a red-herring (594). No one disagrees that there are substantial benefits to single-sex educational facilities. That is sufficient to make Virginia’s case. Admitting a woman to VMI will undermine its curriculum’s methodology; in doing so, it will undermine the benefits accrued through a single-sex education. The Court deprived Men of this benefit.

Scalia also recognizes that the Majority is dissolving a unique situation for the desire to provide it to all, but these are exclusive concepts, as he recognizes (596). When a unique educational experience is restricted to one sex, and that sex-specific restriction is what – in part – makes it unique, to open it to all sexes is to effectively deprive it of the quality that makes it unique. If it is open to all, it's not for anyone in particular, i.e., it’s not unique at all.

In some of his final dissenting words for this case, Justice Scalia states:

“The issue will be not whether government assistance turns private colleges into state actors, but whether the government itself would be violating the Constitution by providing state support to single-sex colleges. When the Government was pressed at oral argument concerning the implications of these cases for private single-sex education if government-provided single-sex education is unconstitutional, it stated that the implications will not be so disastrous, since States can provide funding to racially segregated private schools, ‘depend[ing] on the circumstances,’ Tr. of Oral Arg. 56. I cannot imagine what those ‘circumstances’ might be, and it would be as foolish for private school administrators to think that that assurance from the Justice Department will outlive the day it was made, as it was for VMI to think that the Justice Department's ‘unequivoca[l]’ support for an intermediate-scrutiny standard in this litigation would survive the Government's loss in the courts below.”

Justice Scalia effectively identifies that even if it is beneficial to Women, Men, Blacks, Whites, etc., sex-specific or race-specific education cannot be supported by the government if it is acting in accordance with the 14th amendment and Title XI.

In conclusion, this case has several effects that I think, given its length, need to be rehashed. First and foremost, it clearly established that a governmental agency will face obstacles if it wishes to fund a private or public educational institution that wishes to establish, for the benefit of its students, pursuant to a State’s goals, sex-specific (or even race-specific) schools. Any school that would try to establish such a school, no matter how much evidence they were capable of presenting demonstrating the benefits to be had from deploying such specifying means, would simply be disincentivized from doing so; the costs and risks too high to even try. This emphasizes, once again, as both Pittsburgh Press and Phillips v. Martin do, that the 14th and, by extension, the CRA allow the government to slowly encroach, through bureaucratic means, into the lives of Americans, restricting their rights. This also emphasized, as Phillips v. Martin clearly did, the emphasis on laws needing to be construed and written with respect to the individual alone. Unlike Johnson v. Santa Clara, this case did not grant States the power to permit discrimination if it benefited a group, as it did then, but rather – even if the action taken by a State were to benefit a group – it prevented an individual from accruing that benefit from a State-sponsored institution.

This last point needs to be interpreted on its own. If you recall, the argument established by Phillips v. Martin was as follows: X are X, some X are Y. X are X, and most X are Y. For the first statement, we have this inference, given the CRA’s stated aims: X are X, but there are some X that are Y, therefore we cannot treat any X as if it is only X. For the second statement, we have this inference, given CRA’s stated aims: X are X, and – yes – most X are Y, but some X are not Y. From both arguments, the first premise in both of the initial statements is made meaningless. Species X is effectively a meaningless category; any member of X must be considered as a category of itself. What this should have done was effectively made all reference to Race or Sex or Religion, or any other generalizing category illegal – but it did not do this because the law wasn’t intended to be construed as it was written. It was intended to be construed as a means to reconstitute the culture, i.e., to break the patterns of racial and sexual segregation and hierarchy, a goal founded upon circular logic. That is why in one instance, Johnson v. Santa Clara, sex is a legitimate category, and in another, United States v. Virginia, sex isn’t a legitimate category, and – in fact – it’s not even clear you can refer to sex as a general category for the benefit of that category. What even is a Man, or a Woman, especially if the law requires us to treat everyone as an individual only?

Lastly, and this shall conclude my review of this case, United States v. Virginia effectively killed chivalry, or what remained of it. I think this point is best expressed by the words of the prestigious and – if I dare say – honorable Justice Scalia:

“In an odd sort of way, it is precisely VMI's attachment to such old-fashioned concepts as manly ‘honor’ that has made it, and the system it represents, the target of those who today succeed in abolishing public single-sex education. The record contains a booklet that all first-year VMI students (the so-called ‘rats’) were required to keep in their possession at all times. Near the end there appears the following period piece, entitled The Code of a Gentleman (italics added):

‘Without a strict observance of the fundamental Code of Honor, no man, no matter how `polished,' can be considered a gentleman. The honor of a gentleman demands the inviolability of his word, and the incorruptibility of his principles. He is the descendant of the knight, the crusader; he is the defender of the defenseless and the champion of justice . . . or he is not a Gentleman.

‘A Gentleman . . .

‘Does not discuss his family affairs in public or with acquaintances.

‘Does not speak more than casually about his girl friend.

‘Does not go to a lady's house if he is affected by alcohol. He is temperate in the use of alcohol.

‘Does not lose his temper; nor exhibit anger, fear, hate, embarrassment, ardor or hilarity in public.

‘Does not hail a lady from a club window.

‘A gentleman never discusses the merits or demerits of a lady.

‘Does not mention names exactly as he avoids the mention of what things cost.

‘Does not borrow money from a friend, except in dire need. Money borrowed is a debt of honor, and must be repaid as promptly as possible. Debts incurred by a deceased parent, brother, sister or grown child are assumed by honorable men as a debt of honor.

‘Does not display his wealth, money or possessions.

‘Does not put his manners on and off, whether in the club or in a ballroom. He treats people with courtesy, no matter what their social position may be.

‘Does not slap strangers on the back nor so much as lay a finger on a lady.

‘Does not `lick the boots of those above' nor `kick the face of those below him on the social ladder.'

"Does not take advantage of another's helplessness or ignorance and assumes that no gentleman will take advantage of him.

‘A Gentleman respects the reserves of others, but demands that others respect those which are his.

‘A Gentleman can become what he wills to be. . . .’

I do not know whether the men of VMI lived by this code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.”

 

Discussion and Conclusions:

“Every wise woman buildeth her house: but the foolish plucketh it down with her hands.” – Proverbs 14:1

I think it is safe to say that the 20th Century was one of rapid advancement, technologically and socially. Women’s Rights clearly advanced greatly in 100 years, for better or worse. Muller v. Oregon started us off, and highlighted the fact that, at one point in the history of the United States, the States had the ability to restrict the freedoms of women, and I wouldn’t doubt the freedom of men to contract, at least, in order to preserve the wellbeing of their citizens and the stability and security of their people to ensure that justice was upheld. We once again see such a right affirmed in West Coast Hotel. With respect to West Coast Hotel, we should also reflect on the fact that the interplay between men and women – i.e., one’s well-being with respect to the other and society as a whole – was a clear factor under consideration. The freedom of women wasn’t merely restricted for paternalistic reasons, it was also restricted because their wellbeing and the wellbeing of men had to be considered in tandem; if either were put in a position – if women were taken advantage of by employers or men had fewer opportunities available for them to work – where their wellbeing was threatened, they could advocate – through the legislative process – for change that reflected their interests as a whole. With the passing of the CRA, this legislative power was effectively taken from them and put into the hands of elite statesmen and managers.

Philips v. Martin started us off in the new, post-CRA era. At the core of Philips v. Martin is the argument that individualism is the new aim of the changing republic. As referred to in Philips v. Martin, the CRA requires that the Court simultaneously grant individual political privileges on the basis of their sex or race while also claiming that such factors are not relevant for an employer to consider; such factors were especially not relevant considerations if they weren’t bona fide qualifications. In Pittsburgh Press, we can see that the CRA was beginning to enable the government to seep bureaucratically into the lives of most Americans; specifically, the freedom of the press was potentially under threat if it did not accord with the new ideological precepts of the CRA regime. This case also highlights the fact that the CRA and the 14th were becoming tools of the Federal Government and States to restrict the liberties of its citizens while simultaneously claiming to uphold them – a fear justifiably held by the pre-CRA courts. In Johnson v. Santa Clara, this capricious new power afforded to the States and to the Federal Government was enlarged. Santa Clara granted states the power to implement affirmative action programs that sought to correct past racial and sexual segregation and hierarchy evidenced by conspicuous statistical imbalances. Of course, the existence of those statistical imbalances did not need to be shown to be the result of racial or sexual segregation; their existence was simply proof enough – an entirely circular argument. This allowed politicians to curry or garner votes from various racial and sexual constituencies by providing them with the means to acquire work by affording them training, opportunities, employment, and promotions, all of which were proportionally diminished for White Men. It also decreased the costs employers might incur by allowing them to make excuses for why they wouldn’t hire the individual with the kind of qualifications that would require the employer to pay him more. It also enabled the discrimination of White Men in the name of the “politically impotent” despite the fact that the average Joe White-Man didn’t have the kind of political power that would necessarily enable him any greater access to opportunities or promotions than the next guy of another race or any woman.

Importantly, this case also established that the stated goal of the CRA and Title VII at least was to break the patterns (reconstitute the culture) of sexual and racial segregation and hierarchy that existed prior to the passing of the CRA. Of course, any evidence of these patterns or this kind of culture simply begged the question; its assertion merely circularly implied the existence of segregating racial or sexual policies. Regardless, it enabled States and the Federal Government to fund the training of minorities and women to provide them with opportunities and experiences that would enable them to acquire the bona fides necessary to access more upper-middle-class or upper-class employment opportunities and promotions. Of course, due to the limited nature of resources – you can’t give everyone everything – these resources couldn’t go to everyone, and if they weren’t going to go to anyone in particular, that anyone was going to be White Men. Effectively, this meant that, for the same opportunities a woman or a minority would acquire, a White Man would more than likely have to pay – out of his own pocket – for that training experience or opportunity. In effect, this means he would be more liable for having to pay for his bona fides than a woman or minority, and – on top of the fact that he was more likely to be discriminated against on the basis of being a White Man – he had to compete more to acquire a job to pay off that necessary bona fide. As a result, this effectively economically disincentivized higher education for White Men, the employment of White Men, and limited employment opportunities for White Men. By this time in America’s history, White Men had become – legally speaking – third-class citizens. Men, in general, could be considered second-class citizens behind Women.

Lastly, we get to United States v. Virginia, which I spent a significant amount of time on, only because I thought that the facts of the case were important to review. Legally speaking, United States v. Virginia rewrote the intermediate standard and turned the standard usually used to interpret whether a State had the authority to discriminate on the basis of sex or race into a standard that required the State to significantly convince the Court that it was in the right. What exactly it means for a State to significantly convince the Court is totally unclear; it is an ambiguous standard that does more to deter than to set fair boundaries. Of course, this means that any governmental agency that even tried to establish a public or private school that discriminated on the basis of sex (if not also race) – that it in part funded – would face significant obstacles if it wished to do so, even if it showed that doing so would be beneficial for the students who attended the school, as Virginia had clearly shown was the case. This also clearly demonstrates that the CRA and 14th were used as vehicles to limit the privileges and immunities of Citizens of the United States, specifically citizens of each State, and their ability to pass legislation that accorded with the public’s interests. If it was in the public’s interests to establish sex-specific (or even race-specific) schools, they could not do so any longer or would face such significant obstacles trying to do so that it wouldn’t be worth it. This was an issue early 20th Century courts dealt with, and in having dealt with it prior to the CRA, tended to defer to the States and avoided preempting State law. With the passing of the CRA and by United States v. Virginia, that tendency had been clearly diminished. Lastly, it seems to, in principle, run in the opposite direction of Johnson v. Santa. Johnson v. Santa Clara granted States the power to implement policies that enabled them and companies in their State to discriminate on the bases of sex, race, and handicap status if it benefited a group. In United States v. Virginia, just the opposite occurred. States tried to sponsor institutions that benefited a group (men) and were prevented from doing so because some women were not permitted to benefit from the institution sponsored by the Commonwealth: VMI. In one instance, it didn’t matter if men couldn’t benefit and in the other instance it mattered that women weren’t benefiting. This effectively highlights the utter incoherence of the CRA and the 14th and their near-infinite construability. There’s no finer demonstration than this, in my opinion than when the CRA requires an employer to ignore the general qualities of a person (e.g., their race or sex) while also requiring them to consider those general qualities when hiring on the basis of affirmative action. And of course, if United States v. Virginia did anything, if Women’s Rights did anything, it ultimately put a nail in the coffin that was Chivalry.   

What all of these cases point to, especially with respect to Women’s Rights, is a reconstitution of the American Culture, specifically reshaping the privilege and immunities of citizens vis-à-vis their racial, sexual, or handicap status, at least. I keep restating this, but I just want it to be clear, Johnson v. Santa Clara clearly demonstrated that Congress’ express concern when writing the CRA was to break apart the old culture and to replace it with something new; to essentially completely overthrow the old hierarchy and to instantiate a new one. It just so happens that this new hierarchy needed White Men to be third-class citizens; I wonder why. The basis for doing this was that the pre-CRA culture and society were built upon racial and sexual segregation and hierarchy, evidenced – by the time of Johnson v. Santa Clara – by nothing more than conspicuous statistical imbalances. Of course, the circularity of their argument dare not be questioned – even today, such questions (in some circles) are clearly heretical; doing so outs you as one of those people who isn’t with the times and doesn’t recognize that we need to reshape the culture in a new image, to right the wrongs of the past evidenced by the contemporary wrongs of today which are evidence of the wrongs of the past. Don’t question the circularity; just nod your head and agree, they say. Of course, this kind of policing of speech and thought is central to the CRA regime’s grasp on this culture, and why its head priests, now mostly women or the effeminate, are more likely than not to suppress speech (Clark & Winegard, 2022; Carl, 2021) – a major concern of the dissenters to the Pittsburgh ruling.

It also isn’t really any wonder that Men have become so socially listless. Why wouldn’t they be? If they work hard, especially if they’re White Men, they’re more likely to be overlooked by a major company. And if they have to pay to acquire the bona fides or credentials to work in an upper-middle-class or upper-class position, they’ll have fewer opportunities to pay those debts off. There’s no economic incentive for White Men to actually try because, on average, they are being discriminated against – and worst of all, the country that many of their ancestors fought or died to protect, build, and preserve is permitting it. The feeling of historical betrayal for those young men must be so great that it is a genuine surprise that they have not simply burnt the whole thing down. Of course, a culture of comfort does prevent such natural immune responses.

Women, of course, have benefited from these newfound rights or, as they might justifiably be called, privileges, specifically economically (Kaplan & Hoff, 2022; Fry, 2022; Knueven, 2019). But I’m not sure that has really benefited most women. Women are, as David Buss clearly has established, hypergamous. Of course, they are hypergamous on many different levels, and are thus not simply concerned with the economic well-being of the man they want to be with, but his economic prospects are a consideration that neither I nor Mother Nature can fault her for having. Yet if Men are legally disincentivized from getting the bona fides necessary to get that nice, six-figure job, but women want those kinds of men, their choices are going to be extremely limited. I simply doubt that personality changes in women alone will alter their biological urges; they are – more often than not – going to want someone who’s nurturing, who’s capable of providing for them, who will not hurt them or their offspring, and who has good future potential, at least. Men whose prospects are legally limited, especially White Men, are going to appear to women, generally speaking, as unattractive suitors. However, given our institutions are mindless behemoths and are not, themselves, consciously discriminating against Men in general and White Men in particular, for the sake of Women in particular, Women are – even if they don’t want this to be the case – going to benefit from the spirit established by the CRA and Women’s Rights cases. In other words, if Women want the kind of Men who will genuinely make good husbands, especially because they are in a better economic position than most Men and especially White Men (if they're younger Millennial and Gen-Z women), they need to find a way to enable Men in general and White Men in particular to become suitable suitors for them. Every Beast needs a Belle to tame him.

Lastly, I’d like to make a few predictions. I highly doubt the requirements of the CRA and the 14th can hold. A lie cannot perpetuate itself forever. What the CRA and 14th effectively require a person to do is to ignore what’s before them; they require that he ignore the statistical validity and practicality of stereotypes for the deluded notion that no category but the category of the individual exists (Jussim et al., 2009). These kinds of myths are transforming into mass delusions that require the population to pretend that a man who dresses up as a woman, who has his genitals removed, and who pretends to be what he thinks a woman is, as he defines himself, is a woman. This means either two things: there never was a category Woman, which may be reasonably inferred from Justice Ginsberg’s ruling in United States v. Virginia or there is an abstract category Woman that it is perfectly reasonable and practical to generalize about. If the latter is true, it’s probably true in more than one instance – i.e., about more than just Men and Woman  – and the CRA (at least) can be seen as an impractical and groundless attempt to right perceived past injustices.

I think it’s also reasonable to predict that, at some point, the centralized power of the Federal Government will collapse merely due to the very nature of entropy. I also think bloat, the kind that comes from an unnecessarily large administrative body, the kind directly related to the upkeep of CRA standards and 14th amendment violations, will also cause its dissolution. As this occurs, States – as they have always had this right unless it is infringed upon by the Federal Government (as it clearly has been) – will have the right to determine for their citizens, at their behest, whether a goal is appropriate for them. The interests of the public, especially with respect to what’s appropriate for their Men and Women, at this point in time, will once again be considered a valid legislative power of a State. Effectively, we should expect, as the Federal Government weakens and pulls back, that States will return to the kind of legislation we saw at the beginning of the 20th Century if not even further back. This might just be something I hope for, but I think it holds if we recognize that centralized powers cannot maintain themselves forever. I also simply think it would be a wise course of action, even if the Federal Government doesn’t lose its power, as I do not think the government is genuinely capable of managing the lives of people it doesn’t understand. A centralized government is alienated from the people it rules over. A more local government is capable of understanding its people, representing its people, and determining what’s appropriate for its people. Such governments will always be far more effective at creating legislation for their people, men, women, etc., than a centralized government, like the Federal Government, which is only really capable of understanding them through these localized entities or abstractly. Why create the added inefficiency; just let the local government handle its own matters.

In conclusion, I think it is safe to say that Women’s Rights have had a significant, if not very beneficial, impact on the United States of America. I think it is appropriate to say that with the rise of Women’s Rights came an administrative state and bureaucracy that interfered with the States and their ability to make laws with respect to their people’s interests. The goal of some of the advocates of Women’s Rights seems to clearly be the reconstitution of the United States in their image. Any dissent to this would have you effectively silenced or suppressed – a genuinely feminine tendency. This reconstitution of the United States also made White Men third-class citizens and Men in general second-class citizens legally, who were always required to “give up their seat” for the sake of the lady. I think in the long-term, women will either have to recognize that they need to support their men, or the society they came from will simply cease to exist. A society whose women demand the unquestioning subservience of their men will ultimately destroy itself. America, for the sake of Women’s Rights, has become just this kind of society, and it is literally destroying itself. Most importantly, Women’s Rights and the CRA demand that its subjects and adherents adopt what is, in effect, a religious proposition: we are all equal and individuals. Neither of these statements is true, they cannot even be true at the same time. As a result, we now inhabit the body of a society inspirited by a kind of madness; the spirit of the CRA cases and Women’s Rights cases is, as I have pointed out, an incoherent one. It is this madness that may be both the US's downfall as it stands and its future salve.

 

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