Today in Supreme Court History: January 17, 1973 and January 17, 1996

Frontiero v. Richardson (1973) and United States v. Virginia (1996) were argued on the same day, twenty-three years apart. Ruth Bader Ginsburg argued the former case, and wrote the majority opinion in the latter case.

 

Comments

[JoeFromtheBronx]

These cases involve sexual equality. Ginsburg noted that the justices seemed to find "sex" a touchy term, so "gender" equality was favored.

The Equal Protection Clause refers to "persons," as does the Due Process Clause, which has long been understood (see, e.g., Bolling v. Sharpe) to have an equal protection component.

The application of both clauses develops over time. Judges take notice of current understandings to some extent. As noted over one hundred years ago in Mueller v. Oregon:

Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking. At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long-continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge.

Constitutions provide some degree of stability, but "facts" change when applying them over time. This has influenced sex equality cases. It has influenced other constitutional disputes.

It is a Constitution we are expounding, intended to set forth a framework with the specific applications often of a character only dimly expected by its framers. (McCulloch v. Maryland)

There were a few circa 1868 who saw the potential of the Fourteenth Amendment for women's rights. As a whole, it took some time, though cases like Adkins v. Children's Hospital had a broad view of sex equality even by the 1920s.