The crowd at the Women’s World Cup finals chanted “Equal pay!” after the U.S. win, CBS News reported. The lack of an equal rights provision in the U.S. Constitution is often cited as a form of discrimination long overdue for fixing. Why isn’t equal pay in the Constitution?
According to the CBS News article, the U.S. women’s national soccer team, which won a record-breaking fourth World Cup last week, is only paid about one-third as much as the U.S. men’s team, which has never qualified for a World Cup. The U.S. women’s soccer team is currently suing the U.S. Soccer Federation over the sizable pay gap between its team and its male counterparts’ team. This situation is partly due to the lack of an equal rights provision among the sexes in the U.S. Constitution, which has been increasingly railed against in recent years and is worth a closer look.
Women’s Rights in the 19th Century
The Constitution of the United States of America does have an Equal Protection Clause in its 14th Amendment, but it contains no mention of sex. It was written at the time of abolishing slavery, and the writers of the amendment were more concerned with protecting recently freed slaves. “Women’s suffrage groups, which had joined abolitionists in fighting for the downfall of slavery, had tried to add the right to vote for women into the Constitution, but the 14th Amendment’s text plainly makes no mention of that right,” said Professor Eric Berger, Professor of Law and the Associate Dean for Faculty at the University of Nebraska College of Law.
Professor Berger cited an 1874 Supreme Court case, Minor v. Happersett, which ruled that women had no Constitutional right to vote. “The Court conceded that women, like men, can be citizens of the United States,” he said. “Accordingly, if the right to vote were a privilege or immunity of U.S. citizenship, then the denial of women’s suffrage would violate the Constitution. The Court, however, concluded that suffrage was not a privilege or immunity of U.S. citizenship.”
Constitutional Changes for Women in the 20th Century
The 19th Amendment finally struck a blow for women’s rights, but unfortunately it contained no equal rights clause. In fact, the Nineteenth Amendment only states that the right to vote—and only that specific right—shall not be denied based on sex.
“In the early 1970s, both Houses of Congress proposed an equal rights amendment that would have added explicit protection against sex discrimination,” Professor Berger said. “The proposed amendment also empowered Congress to pass legislation further protecting against such Constitutional violations.”
Article V of the Constitution says that three-quarters of the states must ratify any proposed Constitutional amendment before it can go into effect. Professor Berger said that Congress submitted the Equal Rights Amendment in 1972, and within a few months, half the states had signed it. “Ratification slowed down afterwards, however, and even though Congress extended the time period for ratification until June 30, 1982, the effort fell just short,” he said. “Under the Constitution, 38 states were needed to ratify the amendment, but as of the deadline, only 35 had done so. The Equal Rights Amendment had failed.”
State legislation still allows for the ratification of equal rights amendments, but the U.S. Women’s Soccer Team’s lawsuit is one of many examples that true equality of the sexes still has a way to go.
Eric Berger, J.D., contributed to this article. Professor Berger is a Professor of Law and the Associate Dean for Faculty at the University of Nebraska College of Law. He received his B.A. with honors in History from Brown University and his J.D. from Columbia Law School, where he was a Kent Scholar and an Articles Editor on the Columbia Law Review.