RACE AND GENDER DISCRIMINATION: A HISTORICAL CASE FOR EQUAL TREATMENT UNDER THE FOURTEENTH AMENDMENT SANDRA L. RIERSON" It was we, the people, not we, the white male citizens, nor yet we, the male citi- zens, but we, the whole people, who formed this Union. And we formed it, not to give the blessings of liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people-women as well as men. -Susan B. Anthony' Under the common law of both England and the United States, a mar- ried woman enjoyed a legal status only slightly better than that of a slave. Until the mid-nineteenth century, in no state could a married American woman own property, make a will, inherit, sue or be sued, enter into a contract, or exercise any other of her most basic civil rights. Even single and widowed women, many of whom owned large amounts of property, were deprived of political rights: they could not vote, hold office, or sit on a jury. The gradual dissolution of women's inferior legal status began with the passage of married women's property laws, beginning before the Civil War and continuing throughout the twentieth century. In an even more brutal fashion, the institution of slavery stripped Black Americans of all their human, civil, political, and social rights.' In Dred Scott v. Sanford the Supreme Court determined that, even if Blacks were "free," they were not "citizens" of the United States.3 This Supreme Court ruling was superseded by the passage of the Thirteenth and the Fourteenth Amendments in 1865 and 1868 respectively, in which Congress emancipated Blacks, expressly granted them citizenship status, and sought to protect their civil rights. * B.A., University of North Carolina at Chapel Hill, 1989; J.D., Yale Law School, 1992; law clerk to Judge Richard A. Gadbois, United States District Court for the Central District of California, 1992; Associate, Quinn Emanuel Urquhart & Oliver, Los Angeles. 1. ELIZABETH CADY STANTON, 2 HISTORY OF WOMEN'S SUFFRAGE: 1861-1876, at 632 (Amo Press ed., 1969) (1881). 2. In this Article, I have used the term "Black" when referring to persons of African heritage living in the United States, rather than "African-American". I realize that "African- American" more accurately describes such persons today, but given the historical context of this Article, the term did not seem appropriate. During much of the time period discussed in this Article, Blacks in the United States were enslaved. Even when they were technically "free", the Supreme Court refused to recognize their national citizenship. I therefore question whether Blacks in the United States would have considered themselves to be "African-Ameri- cans" during this time period. 3. 60 U.S. (19 How.) 393, 416 (1857). 90 DUKE JOURNAL OF GENDER LAW & POLICY Volume 1:89 1994 Congress did not extend the political rights of citizenship to Black males until it adopted the Fifteenth Amendment in 1870. Until this development, advocates of women's rights in the nineteenth century considered Black males' legal status to be equal to their own-that of "second-class citi- zens"-citizens with some civil, but no political rights.' The Woman's Move- ment, led by Susan B. Anthony and Elizabeth Cady Stanton, began as a counterpart to and an ally of the Abolition Movement. However, when Con- gress amended the Constitution to forbid discrimination in voting on the basis of race-but not on the basis of gender-the alliance abruptly ended. This Article does not argue that women of all races and Black men have experienced identical levels of oppression in American society, nor that the relationship between husband and wife in the nineteenth century was perfectly analogous to that of master and slave. In theory, a husband's love for his wife should have prevented him from abusing the legal superiority that he enjoyed over her.' Few would suggest that such a bond existed be- tween the slave and his master.6 Yet historically, women and Blacks in America have shared a common experience, especially in the context of those rights protected by the Four- teenth Amendment. Sexism and racism in American society have prevented women of all races and Black men from enjoying the rights-civil, social, and political-to which they are entitled under the Constitution. Section One of the Fourteenth Amendment guarantees that all United States citizens are entitled to the "Privileges and Immunities" of that citizenship (civil rights), and that all persons are entitled to "Due Process" and "Equal Protection" of 4. Race and sex are clearly not mutually exclusive categories. It seems patently obvious that at least half of all Blacks are female. Yet although half of all slaves were women, the Fifteenth Amendment's protection against disenfranchisement on the grounds of "previous condition of servitude" only extended to those Blacks who were men. The Woman's Movement has historically failed adequately to address the needs of Black women. Angela P. Harris comments on modern feminists' tendency to perpetuate this failure. See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 581- 616 (1990). These issues became particularly relevant recently in the context of Justice Clarence Thomas' Senate confirmation hearings and the role played in those hearings by Professor Anita Hill. See Christine Stansell, White Feminists and Black Realities: The Politics of Authenticity, in RACE-ING JUSTICE, EN-GENDERING POWER: ESSAYS ON ANITA HILL, CLARENCE THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITY 251-268 (Toni Morrison ed., 1992); Kimberle Crenshaw, Whose Story Is It Anyway-Feminist and Antiracist Appropriations of Anita Hill, in RACE-NG Jus- TICE, supra at 402, 403-406. 5. Nineteenth century women's rights advocates argued that it did not. They challenged the ideal vision of marriage and motherhood popularized in this era. With regard to the holy bond of matrimony, Elizabeth Cady Stanton wrote, "lilt is folly to talk of the sacredness of marriage and maternity, while the wife is practically regarded as ... a slave." ELIZABETH CADY STANTON, The Arena, in EIGHTY YEARS AND MORE: REMINISCENCES 1815-1897, at 230 (Schoken Books ed., 1971) (1898) [hereinafter REMINISCENCES]. 6. Although the notion that a slave loved his master in the same way that a wife loved her husband is perverse and false, much of Southern literature and culture reflects that society's desire to indulge in this illusion and to romanticize slavery. Civil War scenes from GONE WITH THE WIND depicted loyal enslaved house servants fighting to protect their master, rather than joining forces with the "Damn Yankees." See MARGARET MITCHELL, GONE WITH THE WIND (1936). The silent film BIRTH OF A NATION (Hollywood Home Theater 1980) (1915), presented the Civil War in a similar fashion. RACE AND GENDER 91 the laws.7 In interpreting these clauses of the Constitution, courts have ac- knowledged the effects of racism on Blacks and all other racial minorities.8 However, the deleterious effects of sexism on women have been discounted. This Article argues that the judiciary should use strict scrutiny when reviewing discrimination based on sex as well as when reviewing discrimi- nation based on race. Sexism and racism are pervasive prejudices that have been nurtured and encouraged by our laws. Each has been manifested and maintained by the law in the past, hence the need for the law to rectify the effects of this discrimination in the present. I. THEORETICAL PARALLELS BETWEEN RACE AND SEX DISCRIMINATION In his essay, The Subjection of Women, John Stuart Mill constructs many theoretical parallels between the status of women and Blacks in Western society.' He notes that "[liaws and systems of polity always begin by recognising the relations they find already existing between individuals. They convert what was a mere physical fact into a legal right . "" Mill argues in this manner that the underpinnings of slavery advanced from the simple rule of "might makes right" to the level of legal right and contract, whereby one race subjugated another. By this same evolutionary process the common law of "Husband and Wife" codified man's rule over woman. An anonymous seventeenth-century English legal scholar made the following analogy: When a small brooke or little river incorporateth with Rhodanus, Humber, or the Thames, the poor rivulet looseth her name .... See here the rea- son ... that women have no voice in Parliament. They make no laws, they consent to none, they abrogate none. All of them are understood either mar- ried, or to be married, and their desires are to their husbands." For centuries the subordinate status of both slaves and women in America was considered to be the natural state of society predestined by Divine will, 2 and recognized as such by the United States Supreme Court. With respect to slavery, Chief Justice Taney observed in Dred Scott that, when the Founding Fathers wrote the Declaration of Independence, the legitimacy of slavery "was ... fixed and universal in the civilized portion of the white 7. U.S. CONST. amend. XIV, §1. 8. The Supreme Court extended strict scrutiny analysis to include minorities other than Blacks early in the history of its Equal Protection analysis. It provided little explanation for this expansion of Fourteenth Amendment protection. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886) (applying strict scrutiny analysis to racial discrimination against Asians). 9. John Stuart Mill, The Subjection of Women, in ESSAYS ON SEx EQUALITY 125 (Alice S. Rossi ed., 1970). 10. Id. at 130. 11. The Lawoes Resolutions of Women's Rights, in ESSAYS ON SEX EQUALITY, supra note 9, at 53.