"Equal Outcomes": A Constitutional Comparison of Gender Equality Guarantees in the United States and South Africa.

• Author: Mcmullen, Melanie

1. INTRODUCTION

   The evolution of women's rights throughout history has had significant effects on the cultural and legal climate of the world. Each country has its own approach to gender equality, and each country has an impact on the global mindset on women's roles in society. (1) South Africa, for example, is a new and growing democracy that provides more equality guarantees than even the oldest established democracy--the United States. The exploration of newer ideas and approaches to equality can only benefit the growth and expansion of equal rights in the United States.

   The word "equal" is a definitive quantification of sameness. (2) Similarly, Black's Law Dictionary states that "equality" denotes the "quality, state, or condition of being equal; esp[ecially], likeness in power or political status." (3) Although the literal meaning of "equality" seems to insist that equal status, rights, and opportunities can exist between different groups of people, equality in practice will not always result in "same," or even similar, treatment. (4) A review of formal equality versus substantive equality illustrates how equal outcomes sometimes require unequal treatment.

   Formal equality has been explained in different ways but, at its core, it is the manifestation of "literal equality"--presuming that everyone should be afforded the same "rights, conditions, and opportunities" under the law. (5) Formal gender equality, therefore, would provide the same opportunities to men and women--regardless of their ability to act on it. (6) Substantive equality, however, accounts for the inevitable inequalities manifested by providing equal opportunities to groups who will be unable to achieve equal outcomes. (7) Substantive gender equality recognizes that men and women have inherent differences that require different treatment and sometimes disproportionate opportunities to reach similar results. (8) Therefore, substantive equality requires preferential treatment be given to the "historically disadvantaged class" when it lacks the ability to achieve an equal result on its own. (9)

   This Note explores different models of equality through the evolution of the American approach to formal equality in comparison with the South African approach to substantive equality. (10) Part II of this Note surveys the expansion of the Fourteenth Amendment to sex discrimination and the constitutional development leading to South Africa's equality protections. Part III then explores the recent discussion of an Equal Rights Amendment in America and the impact it would have on gender equality. Subsequently, Part IV examines avenues for change and outlines implementation of a South African approach to better promote substantive gender equality in the United States.

2. CONSTITUTIONAL FRAMEWORK COMPARISON

   A. United States of America

   The United States is one of the world's oldest democracies governed by one of the oldest constitutions, (11) yet gender equality was not one of the fundamental rights contemplated for its citizens. (12) The Equal Protection Clause has existed since the ratification of the Fourteenth Amendment in 1868. (13) Although the Equal Protection Clause has ostensibly protected against discrimination on the basis of sex ever since, (14) it was not applied in the context of sex discrimination until the 1970s. (15) Even now, other than the Nineteenth Amendment which guarantees women the right to vote, (16) the United States Constitution contains no express prohibition on sex discrimination. (17)

   1. Fourteenth Amendment

   Congress passed the Fourteenth Amendment as one of three Civil War Amendments to protect the rights of newly freed slaves. (18) The Equal Protection clause of the Fourteenth Amendment prohibits the states from passing or enforcing any laws that "deny to any person within its jurisdiction the equal protection of the laws." (19) Section 5 of the amendment grants Congress the power to enforce these provisions "by appropriate legislation," however, it imposes no obligation on the government to do so. (20) Indeed, the federal government's role is one of remediating specific wrongs, not proactively trying to prevent them. (21) For example, neither the abolition of slavery nor the Fourteenth Amendment were able to eliminate widespread discrimination and institutionalized inequalities against African Americans--segregation was propagated and legitimized throughout education, job opportunities, and public and private spheres well into the 1900s. (22)

   Although the Fourteenth Amendment was written to grant "any person" equal protections, these protections were not realized for decades. (23) The Equal Protection Clause was intended to protect against racial discrimination and not to afford equality based on gender. (24) Although protection against sex discrimination was not the focus of the legislature's intent in passing the Fourteenth Amendment, (25) the "Notorious" Ruth Bader Ginsburg developed a strategy for addressing the discriminatory effects of gender-biased statutes on women and men that eventually led the United States Supreme Court to constitutionalize the protection of sex discrimination under the Fourteenth Amendment. (26) Ginsburg recognized that the distinction between racial discrimination and sex discrimination is that no innate difference exists between black and white beyond the color of one's skin, where inherent biological differences exist between men and women. (27)

   2. Equal Protection Common Law Development

   In 1971, the Supreme Court extended protections against sex discrimination under the Fourteenth Amendment to women for the first time in Reed v. Reed when they held an Idaho probate statute mandating preference to men over women violated the Equal Protection Clause. (28) The statute required preference be given to male applicants in designation of estate administrators; thus, where a mother and father submitted competing applications with equal entitlement, the mother was denied based solely on her gender. (29) The decision in Reed v. Reed established precedent that expanded Equal Protection beyond race, ushering in a new era of constitutional rights protections based on gender.

   After Reed, then-attorney Ginsburg began her famous crusade of sex discrimination cases in the Supreme Court with the American Civil Liberties Union ("ACLU"). (30) The first of these cases was Frontiero v. Richardson (31) in which Justice Brennan articulated a compelling historical review of structurally imposed gender stereotypes in support of recognizing sex as a suspect class. (32) Justice Powell, however, waived the issue of suspect classification as an inquiry for the legislature in his concurrence--seemingly brushing off the constitutional significance of sex discrimination. (33)

   Although Ginsburg lost Kahn v. Shevin, the next case she argued in the Supreme Court, the majority's reasoning seemed to be more closely aligning with the rationale for substantive equality. (34) The Court's reasoning for upholding the contested statute was that the "state tax law [was] reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden." (35) The statute gave exemptions from property taxes to widows but not widowers and thereby granted a benefit or an advantage to a previously disadvantaged group. (36) Justice Brennan, wielding his majority opinion from Frontiero, maintained in his dissent that a classification based on a suspect class "must be subjected to close judicial scrutiny." (37) Therefore, the Court was not "free to sustain the statute on the ground that it rationally promotes legitimate governmental interests." (38)

   Following the loss in Kahn, Ginsburg received another favorable ruling in Weinberger v. Wiesenfeld on a similar issue and continued to shift the Supreme Court's approach to sex discrimination. (39) Prior to this shift in constitutional jurisprudence, sex discrimination was only considered under rational basis review, the minimum level of scrutiny. (40) When Ginsburg and the ACLU began arguing for strict scrutiny in sex discrimination cases, the Supreme Court struggled to decide whether gender was a suspect class. (41) The Court refused to recognize gender as a suspect class, but eventually deemed a heightened level of scrutiny appropriate for sex discrimination. (42) The Court applied an intermediate scrutiny test requiring the government to show that the law was substantially related to a legitimate state objective for the first time in Craig v. Boren. (43) Although racial discrimination is subjected to a higher level of scrutiny that requires the government to show the law is "narrowly tailored to serve a compelling governmental interest," (44) this was still a monumental shift in gender equality jurisprudence.

   3. Levels of Scrutiny

   In the United States, the foundation of equal protection cases relies on whether the "government's classification [is] justified by a sufficient purpose." (45) However, different types of discrimination are not afforded the same depth of analysis. (46) Courts determine which level of scrutiny to apply based on the identified classification being made: rational basis review, intermediate scrutiny, or strict scrutiny. (47) To determine whether the government is distinguishing between groups of people, the Court has allowed two ways to establish a classification is being drawn: "where the classification exists on the face of the law" or where the law is "facially neutral, but there is a discriminatory impact" or effect. (48) The Supreme Court has specified that a showing of discriminatory impact or effect is "insufficient" to prove a classification based on sex. (49) Rather, to prove a facially neutral law has a discriminatory impact or effect based on sex, there must be proof of a discriminatory purpose behind the law. (50) Once the classification has been identified...