The Fourteenth Amendment to the Constitution is ratified. Its equal protection clause states that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."
In Bradwell v. Illinois, the United States Supreme Court upholds an Illinois law denying women the right to practice law because "the civil law, as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman."47
In Plessy v. Ferguson, the United States Supreme Court upholds a Louisiana law requiring that trains provide separate but equal railroad cars for white and black passengers. In the majority opinion, Justice Henry Billings Brown writes that the Louisiana statute does not violate the Fourteenth Amendment as while "the object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law . . . in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either." In a dissent, Justice John Marshall Harlan writes that "in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law."48
In Lindsley v. Natural Carbonic Gas Company, a case involving New York state's regulatory powers over a privately-owned gas company, the United States Supreme Court establishes a still-used test for assessing the constitutionality of state laws that employ classifications—that is, laws that treat different people or entities differently. The "Lindsley test" states that if the classification has a "reasonable basis" and is not "purely arbitrary," and "if any state of facts reasonably can be conceived that would sustain it," the use of a classification does not violate the equal protection clause of the Fourteenth Amendment. In addition, parties challenging the fairness of such a law bear the burden of proving that it "does not rest upon any reasonable basis, but is essentially arbitrary."49
In Brown v. Board of Education, Topeka, Kansas, the United States Supreme Court overturns the 1896 decision in Plessy v. Ferguson and orders the integration of America's schools with "all deliberate speed." Chief Justice Earl Warren writes that the doctrine of separate but equal has no place in education as "separate educational facilities are inherently unequal." Drawing upon psychological studies as well as legal principles, Warren argues that separating black children "from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Warren holds that the obligation of the Court to redress this inequity is all the greater because the detrimental impact of segregation "is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group."50
In Hoyt v. Florida, the United States Supreme Court upholds a Florida law that allows women to opt out of jury service because "despite the enlightened emancipation of women . . . woman is still regarded as the center of home and family life."51
In Loving v. Virginia, the United States Supreme Court holds that states cannot ban interracial marriage since "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." 52
In Green v. School Board of New Kent County, the United States Supreme Court strikes down the "freedom of choice" school integration plan of this Virginia district. Noting that the freedom to choose could easily result in the perpetuation of traditional attendance patterns, the Court holds that district integration plans must promise to achieve the actual objective of integration. School integration cannot be left to chance, the Court says, districts must "come forward with a plan that promises realistically to work, and promises realistically to work now."53
President Richard Nixon issues the "Philadelphia Order" requiring the city's building contractors holding government contracts to set specific goals and timetables for hiring minority workers. This order adds specificity and teeth to the federal government's (to this point vaguely defined) policy of affirmative action.
In Alexander v. Holmes County Board of Education, the United States Supreme Court rejects a request from the Justice and Heath, Education, and Welfare Departments that 33 Mississippi school districts be allowed to delay submission of their desegregation plans. In the majority opinion, Justice Hugo Black writes that "'all deliberate speed' has turned out to be only a soft euphemism for delay." He therefore states that "there is no longer the slightest excuse, reason, or justification for further postponement of the time when every public school system in the United States will be a unitary one, receiving and teaching students without discrimination on the basis of their race or color."54
In Swann v. Charlotte-Mecklenburg Board of Education, a case involving a court-ordered plan to desegregate Charlotte, North Carolina's schools, the United States Supreme Court holds that federal courts have broad powers to define corrective measures for racially imbalanced schools. It further holds that these measures can include the redrawing of district boundaries and the busing of students to more distant schools.
A United States District Court orders the Alabama Department of Public Safety to hire one African-American state trooper for every white trooper hired until blacks represent 25% of the total trooper force. The court orders the implementation of this hiring quota after the Department of Public Safety fails to respond to an order issued eighteen months earlier to diversify its state troopers.
In Keyes v. Denver, the United States Supreme Court holds that evidence of discriminatory action in one part of the district justifies a conclusion of district-wide discriminatory practice warranting district-wide judicial intervention. Moreover, the Court argues that the burden lies with the district to prove otherwise.
In Craig v. Boren, the United States Supreme Court holds that an Oklahoma statute, which sets different legal drinking ages for men and women, violates the equal protection clause of the Fourteenth Amendment. The ruling sets an "intermediate" standard for judicial scrutiny of laws incorporating gender classifications. Justice William J. Brennan, in the majority opinion, states that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives."55
In Milliken v. Bradley, the United States Supreme Court holds that school districts can be compelled to establish programs aimed at correcting educational deficiencies caused by past discriminatory practices. Even though a district's current practices may not be discriminatory, a district can be forced to set up remedial programs to close educational gaps resulting from past behaviors or policies.
In Regents of the University of California v. Bakke, the United States Supreme Court rules that while admissions quotas may not be used by colleges to increase minority enrollment, race may be used as one factor among many in evaluating student applications. Allan Bakke brought the suit after being denied admission to the University of California, Davis Medical School and discovering that minority applicants with lower grades and test scores had been admitted to fill sixteen admissions slots (out of a total class of 100) that had been set aside for minority applicants.
In Orr v. Orr, the United States Supreme Court rules that an Alabama law freeing all women from the obligation to pay alimony is unconstitutional. While the governmental objective is legitimate—providing financial relief to the poor—it is not reasonable or fair to assume that salary differentials between spouses always correspond with gender. In fact, the Court says, the law unfairly punishes poor men and advantages wealthy women.
In Fullilove v. Klutznick the United States Supreme Court upholds a federal law requiring that ten percent of all public works contracts be awarded to minority-owned businesses.
In Michael M. v. Superior Court, the United States Supreme Court upholds a California statutory rape law that forbids men (but not women) over 18 to have sex with non-spousal partners under 18. The petitioner argues that this treats men unfairly. But the Court holds that the governmental objective is important—preventing teen pregnancy—and the different treatments accorded men and women are "substantially related" to the achievement of that objective. Since men cannot get pregnant (even men under 18) the law need not protect young men in the same way that it could protect young women.56
In Rostker v. Goldberg, the United States Supreme Court holds that federal laws excluding women from the military draft are not unconstitutional as the use of a gender classification in this instance is "substantially related" to the achievement of an "important governmental objective." Since the primary purpose of the draft is to identify a pool of combat-capable persons, and since women are excluded by the military from combat, the unequal treatment of men and women is defensible.57
In Wygant v. Jackson Board of Education, the United States Supreme Court holds that a contract granting minority teachers more protection against lay-offs than white teachers violates the Fourteenth Amendment. The Court finds inadequate proof of specific, local discrimination to warrant the use of racial classifications. It insists that affirmative action programs employing racial classifications are permissible only when constructed as a remedy for proven and specific discrimination in the past.
In Bowers v. Hardwick, the United States Supreme Court rules that Georgia's anti-sodomy laws do not violate the Fourteenth Amendment. In a concurring opinion written by Warren Burger, the Justice notes that "condemnation of [homosexual activity] is firmly rooted in Judeo-Christian moral and ethical standards." He cites the eighteenth-century legal scholar, William Blackstone, in support. "Blackstone described 'the infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature,' and 'a crime not fit to be named.'"58
In City of Richmond v. J.A. Croson Company, the United States Supreme Court strikes down a municipal program that sets aside 30% of all public works contracts for minority businesses. As in Wygant v. Jackson Board of Education, the Court finds inadequate proof of specific, local discrimination to warrant the use of racial classifications. It insists that affirmative action programs employing racial classifications are permissible, but only when constructed as a remedy for proven and specific discrimination in the past.
In Missouri v. Jenkins, the United States Supreme Court holds that federal courts can order local districts to increase taxes in order to fund remedial programs established to address educational deficiencies caused by past discriminatory practices. In this particular instance, the Court holds that the federal court abused its authority by not first allowing the school district to devise its own funding solution. But the Court insists that federal courts do have the authority to order tax increases to correct constitutional violations.
In United States v. Fordice, the United States Supreme Court holds that even though the University of Mississippi currently maintains "race—neutral policies," vestiges of its former discriminatory practices remain. The fact that entrance standards at the historically white institutions are higher than those of the historically black institutions is "suspect because it originated as a means of preserving segregation." The Court also notes that the state maintains duplicate programs, also suspiciously reminiscent of the state's former "separate—but—equal" system. Until these remnants of the state's old segregated college system are eliminated, Mississippi has not met its obligations under the Fourteenth Amendment.59
In United States v. Virginia, the United States Supreme Court rules that the Virginia Military Institute's exclusion of women is unconstitutional. VMI argues that the admission of women will lead to compromised physical and military standards and an erosion of the ethos essential to "the unity of the corps."60 The Court rejects this argument in holding that "generalizations about 'the way women are,' estimates of what is appropriate for most women," can not be allowed to restrict opportunities for women "whose talent and capacity place them outside the average description."61
In Romer v. Evans, the United States Supreme Court strikes down Colorado's "Amendment 2" that forbids local governments from drafting legislation protecting gays against discrimination. The Court holds that the amendment serves no rational government purpose and therefore fails the rational basis test. The decision marks the first time that the Court identifies gays and lesbians as a distinct legal classification entitled to legal protection.62
California voters pass Proposition 209 amending the state constitution to prohibit public agencies, including state colleges and universities, from giving "preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin."63
In Gratz v. Bollinger and Grutter v. Bollinger, cases involving the University of Michigan's undergraduate and law school admissions policies, respectively, the United States Supreme Court serves notice that affirmative action programs employing racial classifications will be subject to close scrutiny by the Court. If racial classifications are applied too heavily, as is the case with Michigan's undergraduate admissions policies, according to the Court, they will be struck down. If race is used more carefully along with many other factors in order to achieve diversity, as is the case with the law school admissions program, the Court will accept it. But, adds Justice Sandra O'Connor, the Court's support for even these more carefully structured programs is limited. Within a generation, she suggests, the use of these sorts of racial classifications will not be acceptable to the Court.
In Lawrence v. Texas, the United States Supreme Court strikes down the state's "Homosexual Conduct" law. The majority opinion, written by Justice Anthony Kennedy, relies primarily upon the rational basis test—that is, the Court finds "no legitimate state interest" in these laws so directly impacting one classification of people. But portions of the opinion that reference a more fundamental right to privacy and marriage suggest to some that the ruling opens the door to future judicial support for gay marriage. After noting the "constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," Kennedy adds, "persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexuals do."64
In Goodridge v. Department of Public Health, the Massachusetts State Supreme Court rules that state statutes barring same-sex marriage are in violation of the equal protection and due process clauses of the state constitution. The court grants the state legislature 180 days to bring state marriage statutes into line with this ruling. Member of the state senate will subsequently attempt to amend the state constitution to ban gay marriage, but they will fail.
San Francisco's mayor Gavin Newsom directs the city clerk to issue marriage licenses to gay and lesbian couples.
The Connecticut State Supreme Court rules that the state's ban on gay marriage violates the equal protection clause in the state constitution.
California voters pass Proposition 8 amending the state constitution to define marriage as a union between one man and one woman. The proposition supplants the state supreme court's decision of May 2008 that held that a ban on same sex marriage violated the equal protection clause of the state constitution.
The Iowa State Supreme Court rules in Varnum v. Brien that the state's ban on gay marriage violates the equal protection clause of the state constitution.
The Vermont State Legislature votes to override the governor's veto of legislation making marriage legal for gays and lesbians.