BROOKLIN — Most Americans believe that our Constitution protects women and men equally. They are mistaken. It may come as a surprise that neither the U.S. Constitution nor our Maine Constitution prohibits discrimination on the basis of sex. That’s right. If you don’t believe it, ask any Supreme Court justice.

Younger women and men may feel as though progress was made long ago, that of course women can vote, hold office, own property, support the family, write contracts, borrow money, be insured, have custody of their children and voice their political views. But should they not also be paid fairly for equal work and be equally protected from violence and sexual exploitation? Why should women bear the full burden for reproductive health care costs, care that is essential to the well-being of families and children and to the future of the country? Are women well represented in our government, in business ownership and management? If not, why not?

Our U.S. Constitution was written for and by white men. It was amended after the Civil War by the 14th Amendment (ratified in 1868) to extend rights to recently freed enslaved men. A common misconception is that the 14th Amendment also can be applied to sex discrimination. The judicial record shows that it cannot – and for several reasons.

The most obvious reason, given the current majority originalist ideology of our Supreme Court, is that a literal interpretation of that amendment cannot pertain to the people who were specifically excluded at the time of its ratification: the women. Article 2 of the 14th Amendment introduces the word “male” into the Constitution for the first time, just to make it perfectly clear.

Without support from the 14th Amendment, laws such as the Equal Pay Act, the Civil Rights Act and the Violence Against Women Act are weakened. Since sex discrimination is not held at the highest level of judicial scrutiny – as are discrimination against race and religion, which are clearly prohibited in the Constitution – most sex discrimination cases do not prevail. The only mention of women in the Constitution is the right to vote, the 19th Amendment (ratified in 1920).

Yes, we have laws that protect women. But laws without a sound constitutional basis have been weakened and repealed by Congress. This is what is happening now. We do not have a federal Constitution that prohibits sex discrimination. We certainly need our Maine Constitution to do it.


Earlier this month, the Maine Legislature narrowly passed L.D. 197, “Resolution: Proposing an Amendment to the Constitution of Maine To Explicitly Protect against Sex Discrimination.” Every Democrat in both the Maine House and the Maine Senate voted in favor of this equal rights bill, and all legislative Republicans except for two state senators (Dana Dow and Roger Katz) voted against it.

On Tuesday, there will be another round of votes in the serious process of constitutional amendment. This time, a two-thirds majority is required to proceed. Unless a significant number of Republican legislators take a closer look at the actual rights protecting their wives and daughters, husbands and sons (men benefit from equal rights, too!), and their mothers and grandmothers, they will miss an opportunity to bring our legal framework into the 21st century. Some of us may be lucky enough not to feel sex discrimination, but we should all open our eyes to see that the scales are tipped against many women.

Why is there opposition to the amendment? There are out-of-date arguments from the 1970s when opposition to the federal Equal Rights Amendment blocked its ratification by three final states. Fear played a big part: fear of women in the military, fear of gay marriage, fear of unisex bathrooms, fear of change in family law and fear of abortion rights.

After 40 years, times have changed. The chief objection heard today is that equal rights are already in the Constitution, making an amendment unnecessary. However, anyone who takes the time to read the Constitution and learn about what has taken place in the courts since the 1970s will see that this is not the case. Constitutional support is essential for any law to be effective and laws protecting equal rights are no exception.

Maine has the chance to set things right, to amend its state constitution, to guarantee rights to Maine’s women that are not yet protected in the U.S. Constitution. Call your Republican state representatives before they vote. Urge them to reconsider their opposition to L.D. 197. Urge them to vote independently and represent the interests of all the women of Maine. Call them and speak up now.

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