SCOTUS Ruling on Gender Discrimination, the 1964 Civil Rights Act, and Howard Smith
--18 June 2020
When I heard about the Supreme Court’s ruling in the combined gender discrimination cases on Monday,[1] and that their decision was based on the sex statute of the 1964 Civil Rights Act, I had to laugh. First, out of happiness for the unexpectedly good decision and its import in the continuing efforts toward equality for all; second, because the sex statute only exists in the Act because the man who added it, Rep. Howard Smith (D-VA), hoped it would prompt “no” votes.
The Civil Rights Act of 1964 was another in a series of laws intended to equalize the people of the United States in the eyes of the law and of one another. It was just short of a century since the first attempts at expanding civil rights had been made. In the Reconstruction Period, immediately following the American Civil War, three amendments were added to the Constitution which, along with two major pieces of legislation, sought to assure equal rights for the formerly enslaved and others of African descent. The Thirteenth Amendment abolished slavery in the United States (with the notable exception of “as a punishment for crime whereof the party shall have been duly convicted”[2]). But it was obvious to all that simply releasing people from bondage was insufficient, as their citizenship was now in question.
This brings us to the Fourteenth Amendment, the first section of which establishes birthright citizenship; anyone born on American soil is an American citizen, irrelevant of their ancestry, race, religion, or slave status. Its second section established electoral consequences for those states which denied the franchise to “any male inhabitants of such state, being twenty-one years of age and citizens of the United States.” A great deal of debate went into the wording of this section, as it could have far-reaching effects beyond what was intended. The decision of who was allowed to vote had traditionally been the purview of the state government and, while the Reconstruction Congress wanted to assure that Black men would be able to vote, they also did not want to alienate the states. The word “citizen” was considered but dismissed because it could be interpreted as enfranchising women. The word “voter” was considered but dismissed because it did not define who a voter was; this could allow states (even northern ones) to disenfranchise Blacks by excluding them from the category of “voter.” The word “male” was settled upon because it was the most consistent with current practice and the intent of the writers. Despite having failed to include half of the adult population of the country, this amendment seemed very straightforward in granting the vote to African American men. It proved not to be.
Between the ratification of the Thirteenth and Fourteenth Amendments, the first bill to go through the Federal legislatures with the words “Civil Rights” in the title was passed: The Civil Rights Act of 1866. It said that federal law overrode any state-level laws which ignored people’s civil rights. It, in the words of Congressional Historian Robert Remini, “announced that national government had the responsibility of protecting the rights of citizens, not the states.”[3]
State-level elections in 1867 showed that stronger language than was found in the Fourteenth Amendment was needed to assure voting rights. Discussion of what would become the Fifteenth Amendment began before the Fourteenth was fully ratified. The wording debate this time was whether it should establish a uniform standard for voting requirements or be proscriptive in listing reasons that could not be used to limit suffrage but leaving other voting requirements to the states. The House settled on the latter, with the final wording being “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” This left a great many ways for state governments to deny the vote, so long as the reason was not race. States used literacy tests and the infamous “Grandfather Clause”[4] to prevent Blacks from voting but did not equally apply these prerequisites to whites. Even though this was very obviously racially motivated, the federal government did not pursue action against the states, nor did they enforce the clause of the Fourteenth Amendment which would have reduced those states’ representation in the House.
The last major piece of Reconstruction-Era civil rights legislation was the Civil Rights Act of 1875. This specified areas of life in which no discrimination should be made, specifically public accommodations (hotels, restaurants, retail shops, etc.), public transportation (mainly trains at this point in history, but also some horse-drawn buses), and in jury selection. This was loosely enforced and then essentially overruled in 1896 by the SCOTUS case Plessy v. Ferguson, setting civil rights law until 1964.
The Twentieth Century’s civil rights movement saw its start after World War II. In many ways, Black soldiers’ experiences in that war acted as a catalyst. Having fought against racism and fascism in Europe they came home to racism. Many of the benefits allotted to veterans of that war were denied to Black servicemen (and -women), most notably the GI Bill. They were refused service in retail establishments and restaurants, prevented from exercising their right to vote and participate in governance, and their children were forced to attend segregated schools. This discrimination was, on paper, illegal under the laws and amendments discussed above. Even taking into account the Plessy decision, it was still illegal because the segregated accommodations were not equal.
It took until 1954 for legal challenges to segregation to reach the Supreme Court. With the decision on Brown v. Board of Education the Plessy decision was overturned: segregation (at least in K-12 public schools) was illegal. The Montgomery, AL bus boycott caused that determination to be extended to public transportation in 1957, 82 years after such access was supposed to have been settled law. Resistance to these determinations led to the 1957 Civil Rights Act, which created a new division in the Justice Department to investigate cases of discrimination and enforce equal rights laws. The department was established, but was able to do little because of opposition and lack of funding.
By the beginning of the 60s, a concerted effort to enact change via nonviolent demonstrations (and the violent response to them) had shown the United States (and the world) the extent to which change was needed. The 1960 Civil Rights Act outlawed violence against peaceful protesters but was not well enforced. The continuation of these protests (and the reactions to them) prompted President Kennedy to advocate for full equality in the law and in society. He was assassinated before he could sign the legislation but his successor, Lynden Johnson, pushed for the bill to be passed, calling it better than any eulogy to serve the memory of John Kennedy.
This Act essentially reinforced the 1875 act, with more specific language. In the statute regarding employment, it outlawed discrimination on the basis of race, religion, and national origin. Then Representative Howard Smith, who was working to defeat the bill, suggested that sex be added as a protected class. He later said it was intended as “a joke.” The bill passed in spite of Smith’s efforts, and now the joke is on him.
I have no idea what Representative Smith thought about homosexuality (if he thought of it at all), but I would guess he was not particularly accepting of it. As for the rights of transgender persons, I’d be willing to bet the concept never crossed his mind. We can say today, however, that his addition to the 1964 Civil Rights Act was an essential element in assuring the rights of the LGBTQIA+ community. Thank you, Representative Smith, without your work this might never have happened.
--Chrissie
For further reading:
Gail Collins, When Everything Changed.
Eric Foner, Reconstruction.
Eric Foner, The Second Founding.
Howard Zinn, A People’s History of the United States.
[1] The consolidated cases were Bostock v. Clayton County, GA, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.
[2] The New Jim Crow by Michelle Alexander discusses this at length.
[3] Robert Remini, A Short History of the United States, 159.
[4] The Grandfather Clause allowed one to vote if it could be proven that his grandfather had been eligible to vote. This disenfranchised virtually all African Americans, north and south.