Sixteen months ago, I announced why my candidacy for the presidency of the United States was impossible. I explained I could not afford it personally; I was doubtful I could get my party’s nomination; that an outsider could not win; the national government is broken and cannot be fixed by itself or the President; I am considered unpatriotic because I criticize the government; and my message would not resonate with enough voters.

It appears I was wrong about some of my concerns, but correct about others. In this new age of the Internet, anyone can raise money, large sums. Since Howard Dean’s meteoric rise, there have been countless national candidates who have garnered huge financial support through the Web. Senator Obama and Ron Paul have proven that there is gold in the Internet hills. So I might have overcome the first hurdle.

It also appears that there is a good chance that Senator Obama could gain the Democratic presidential nomination. I thought the party would act on its baser instincts and that racial bias would be too much for Senator Obama to overcome. Yet, since Iowa, it has been clear that many white Americans have embraced Obama as the best hope for the Democratic party and the country. It has been extraordinary to see Obama before masses of Americans who don’t look like him, earning standing ovations for his orations. Thus, with the right message, maybe I too could have impressed throngs of Americans yearning for better days.

What is unclear is how much Senator Clinton’s gender has had to do with her rejection by so many members of the party. That has been the greatest surprise in this election cycle. She was the presumptive Democratic nominee until Iowa. She had the lead, the money, the machine, the delegates, and Bill Clinton. She also had unparalleled name recognition throughout the world. On paper, Clinton has more experience than Obama, not just eight years in the White House and a dozen as the first lady of Arkansas, but also more time in the Senate. How could she fall so precipitously?

Surely some of it is the Obama effect: his charisma and message of change. Some of it is her unlikeability. Many people don’t like Bill and they don’t like Hillary. Yet, I suspect that many Americans still believe that politics is men’s work; that women belong elsewhere, caring for children or serving the fantasies of men. If I am correct about gender bias, it seems as pronounced among Democrats as it is among Republicans, and it may well be the party’s undoing.

Here I am reminded of Professor Kimberle Crenshaw’s important work on the intersectionality of discrimination and Professor Stephanie Wildman’s work on privilege. Race and gender are powerful markers of advantage and disadvantage. Race may mark Obama for disadvantage, while his gender may serve to privilege him against a more experienced veteran of American politics who is female. On the other hand, gender may mark Hillary Clinton for summary rejection, while race serves as a mark of privilege for her. For me, neither Democratic candidate has said enough about these markers and American politics.

Senator Obama’s extraordinary speech on race might have been a grand slam if he had also indicated that he recognizes the obstacles that all women face in a man-dominated society. Obama needs the support of the women who understand Clinton’s pain. Gender bias is as extensive and as important as racial bias. He needs to explain to women he understands their pain too or he will lose.

The Democratic party would be so much stronger if it understood the intersectionality of race and gender bias. Failure of the party to grapple with both forms of privilege may well throw the election to Senator McCain, who, of course, enjoys both markers of privilege.

Like much of the nation, I was stunned by the revelations of the latest sex-scandal allegations against Governor Eliot Spitzer, the maverick, crusading reformer who promised to clean up government corruption in New York, and who by my estimation, was considered a rising star in national Democratic politics. At 48 and as governor of New York, surely Spitzer has had an eye on the larger prize in Washington.

All of that has changed now because Spitzer apparently paid tens of thousands of dollars for sex with prostitutes employed at the Emperor's Club VIP. Spitzer's many enemies have insisted that if he doesn't resign in the next 48 hours, they will seek impeachment. Moreover, even his fellow Democrats seem convinced that he has no choice but to resign. On the other hand, insiders have suggested that Spitzer's wife has encouraged him to stay on and fight through this scandal.

I am agnostic regarding his resignation. I don't know New York politics well enough to know if the people of the state can forgive him or if they even care that he bought sex. Perhaps there is a view that if he cheats in this way, he must cheat in other ways as well and thus he is unfit to serve. Spitzer should apologize, express contrition, and insist that his service to the State of New York should not be defined by this scandal. Even with such contrition, he may face other legal challenges and perhaps an indictment. Yet, whether he survives is not my main concern.

My concern is that many Americans will conflate Spitzer's high-end sex for hire trysts with the exploitative, abusive, violent, if not deadly, street sex trade that ensnares millions of vulnerable people, including millions of children, throughout the world into forced sexual slavery. I think this is a mistake. I share the concerns of international human rights groups who report on the sexual slavery industry in every part of the world and I am convinced that neither domestic or international legal bodies have done enough to combat sexual slavery. Yet, I am also convinced that making an example of Spitzer will not help reduce the international sex trade or stop powerful and wealthy people from paying for sex. Thus, even if Spitzer has allowed himself to be seduced by his position, power, and wealth and he has not lived up to his own standards, it seems also true that he has been a measured voice in the international movement against sexual slavery. And, we need more, not fewer, of those voices. If I were Spitzer, I would insist that his alleged activities are different not only in kind, but also in degree. His opponents may disagree, but he should make the case, explaining why his hired partners are not victims in the same way as millions of mostly women and children who are sexually assaulted and exploited every day.

It is simple to treat such cases the same. Hired sex is all bad. One leads to the other. It must all be regulated vigorously to protect the most vulnerable people. There is force to this view.

I think the issues are more complicated. Prostitution is an ancient profession. When other professions were all but closed to women by law, men and women organized brothels to service clients. At least in part, the sex trade here and elsewhere emerged from widespread discrimination against women. Women seeking basic survival and without other labor opportunities, traded sex for money. This historic discrimination against women is the principal reason that women throughout the world are much poorer than men. And because women are poor, so are many of their children. Such poverty makes millions of women and children today vulnerable to all sorts of exploitation and violence. Some of them are lured into the international sex trade based on promises of better lives. The law could do so much more to combat the cumulative poverty of women and children, but it rarely does so. Antidiscrimination policy has not transformed the substantive status of women or their children and thus they remain vulnerable to exploitation, abuse, and violence.

The more challenging question is when, if ever, can a woman voluntarily choose to become a prostitute? On the one hand, perhaps it is never a real choice since all other options are not truly open as they have been and are for men. On the other hand, for women who have resources, who have attended college, and who have real alternatives for support, can they nonetheless choose to sell sex? If the Emperor's Club pays its prostitutes six figure salaries, can one choose that work over another job that pays only a quarter of that amount? And if the law closes off the higher paid profession, is it advancing women's equality or hindering it? I don't think these are easy questions. Even worse, I don't think the current scandal will create space to explore any of them. And that's too bad. Whatever Spitzer does, domestic and international legal groups should insist that the law be used to improve the legal status of women after centuries of exploitation.

Equality in this context may not mean that Spitzer's alleged crimes rise to the level of human rights violations. There may be compelling reasons to treat the cases the same. If so, I have not heard them.

When in the course of human events, it becomes necessary for one people, for example, Americans with darker skin, to dissolve the caste which has connected them to another, and to assume among the powers of the earth, the equal station to which unbiased laws entitle them, a decent respect for the opinions of others requires that they declare the causes which impel them to demand substantive equal opportunity.

We hold these truths to be self-evident, that all racial, gender, religious, and orientation classifications, among other bases of caste, are morally irrelevant, politicized social constructions created as tools of domination; that all humans deserve equality of opportunity and dignity; that they are endowed with certain unalienable rights, that among these are equal opportunities at life, liberty, education, employment, political participation, and the pursuit of happiness; that to secure these rights, governments are instituted among humans, deriving their just powers from the consent of the whole governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government.

The history of the United States of America is one of repeated abuses and usurpations, all having in direct object the establishment of an absolute tyranny favoring selected Americans. To prove this, let the facts be submitted to a candid world:

The United States was created to serve the political and economic interests of a small sub-group of white men, relegating most other Americans to varying levels of slavery or slave-like caste. That small sub-group established itself as a despotic ruler over this country, reserving to itself all authority over the means of accumulating wealth and power—land, commerce, politics, education, and occupations. To ensure its domination, that group created a system of race, gender, and religion spoils, seating itself and those most like it at the head of the government privilege line. What emerged was a pernicious political, economic, and social caste system, with a few Protestant, white men directing the extension of American caste and their own unfair privilege up to the present.

That small elite called indigenous American Indians heathen savages, declaring war against them, driving them from sacred native lands, forcing them to submit to unnatural, squalid conditions on and off reservations, and manipulating federal authority to betray treaties and drive them to extinction. American Indian policy was a clarion call endorsing America as a white man's country and Manifest Destiny was a declaration of white supremacy, legitimating the murder and pillage of any tribe that dared to stand in the path of any white person. Those few Native Americans who have survived, live in America's shadows, significantly unseen, unheard and uncounted.

That small white male elite made women, of whatever hue, domestic slaves and sexual objects, denying them control over their lives, their property, and their bodies through laws enacted most often without their representation or consent.

By declaring that "the paramount destiny of a woman was to be wife and mother," that group placed some white women in a caste cage while claiming to place them on a protective pedestal. Nonwhite women were relegated to a subcaste beneath white women, receiving even fewer beneficial opportunities within the women's sphere. Male supremacy was presumed based on theories of religious and biological determinism. Habit did the rest.

That elite forced gay men and lesbians to closet themselves, denying them the most basic human right to choose a consensual life partner and delimiting their rights and opportunities based on the gender of their partner. Current don't ask, don't tell policies continue the estrangement, isolation, danger, violence, and other discriminations against Americans who choose same sex partners.

That white male elite made African Americans, through slavery, segregation, and other affirmative acts of subordination, a despised caste, asserting such persons had no rights which a white person was bound to respect. A century later, even as laws changed declaring an end to American apartheid, white resistance to African American equality hardened, producing myriad devices and legal interpretations that maintained the outsider status of black people.

That elite group made Mexicans and Asian Pacific Islanders its transient, replacement laborers, admissible in and excludable from this country whenever either policy served the interests of that group whether building a railroad or harvesting crops. By closing off federal naturalization procedures to whites until 1870, and then to whites and persons of African ancestry until the 1950s, Mexicans and Asians were not greeted by an immigrant welcome mat, but rather by rejection and hardship.

That small elite's theory of inherent superiority seduced even many working class whites, despite their obvious poverty, illiteracy, and limited political influence. Nonetheless, their whiteness and/or maleness assured them a higher life status than many others constrained by exclusionary laws. They could aspire to become like their elite brothers.

In every stage of these oppressions many persons have petitioned for redress, but those petitions have gone significantly unheeded and have been met with new injuries. A small group, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

I went to law school hoping to one day help others improve their lives. I wanted to use the law to improve society. I had a dream that a single person could make a difference in society. Today, I realize that I am one of the luckiest, most fortunate people on the planet. I also realize that most of the people on the planet have little chance at a meaningful life because of poverty, discrimination, disease, war, and exploitation.

I am so lucky to have a great job as a law professor. I love teaching, I love working with students. I love discussing ideas. I still look forward to each day at work.

I am also lucky to have nutritious food, warm clothing, safe shelter, accessible, clean water, working sanitation, excellent educational opportunities, safe neighborhoods, good health, health care and insurance.

Even more, I have an amazing 9-year-old daughter, who is exceptionally curious, who reads five or six years above grade level, who loves learning, who attends a safe school, who is healthy and has access to health care, who enjoys the love, support, and resources of both parents, who has the support of a family and of friends to not just survive, but to thrive.

My regret is that more children in this world do not share my daughter’s opportunities for an amazing, safe, healthy chance at life. Our children will direct the future of the planet, yet according to the United Nations:

– More than one billion people in the world live on less than $1 a day.

– Nearly 3 billion humans on our planet live on less than $2 per day. For almost half the world’s population, poverty confines their lives to hardship and despair; to diseases that have been preventable or treatable for decades; to illiteracy; to violence; and to myriad forms of exploitation.

The U.N. reports that

– Every year 6 million children die from malnutrition before their fifth birthday.

– Every 30 seconds an African child dies of malaria.

– More than 800 million people go to bed hungry every day.

300 million of them are children. Some of them are in Tuscaloosa.

– Every 3.6 seconds another person dies of starvation.

Most of them are children under 5 years old.

– More than 40% of the world’s population, 2.6 billion people, don’t have basic sanitation.

– One billion people still use unsafe sources of drinking water.

– Five million people, mostly children, die each year from water-borne diseases.

According to CARE:

– More than 30 million children are not immunized against preventable diseases.

– Two million children are believed exploited through the commercial sex trade.

– Over 130 million children have never been to a school.

– Some countries still give educational preferences to boys over girls.

– Nearly a quarter of a billion children work.

As people committed to the human dignity of every person and as social justice advocates, we must develop new ways to combat human poverty. Rather than a war on terror, we need a global war on poverty to lift up the billions of people, and millions of children who deserve what most of us take for granted – a real chance at life. We must fight this war with even greater vigor and resources, and with the cooperation of many other wealthy countries because to do otherwise dishonors each one of us and threatens the peace of much of the world.

I had a dream for a better world. I had a dream for a world in which the people honored the basic human dignity of every human, where no individual or group would seek to maintain subordination over others.

I had a dream for a world in which those in power would rule in favor of the least among them.

I had a dream that equal rights would be the rule, not the exception.

I had a dream that government would stay out of religious affairs, leaving matters of faith to private choice, where conscience liberty would reign and where believers and nonbelievers stand equal before the state.

I had a dream of a nation that would value the life and talent of every person and that it would guarantee to each a basic education with safe schools and effective teachers.

I had a dream that prejudice would dissipate and that knowledge and experience would triumph over fear and hate.

I had an amazing dream, but it appears I was wrong! For so many Americans, my dream is mythical and wholly contrary to the nightmare of their lives.

American law and policy have done great harm to many for most of our history. We need a revision of law and policy if we are to achieve some measure of any American Dream.

Thirty years ago my dream was to attend Harvard University. One of my best friends had enrolled there two years earlier. I wanted to join him at Harvard, and to join its community of young scholars and future leaders. Unfortunately, I was not admitted. My test scores were below-average and my previous educational background was not as rigorous or as rich as I would have wished. I still wanted to be there and would have worked as hard as possible to succeed. Although Harvard said no, Duke University said yes!

Duke University opened doors for me. It allowed me to study with some of the best and brightest young scholars in the country. The experience at Duke transformed the trajectory of my life. And it has been my wish ever since that more young people might have similar access to great academic centers. Duke was demanding and exciting. It had so many great teachers and students. It offered an amazing learning environment. It prepared me for law school.

Earlier this week, Harvard announced its most ambitious plan yet to ensure greater access to middle- and upper-income students. Under the new initiative, students whose families earn between $120,000 and $180,000 per year, will pay no more than ten percent of their annual household income, $12,000 to $18,000, respectively, for tuition. This means that for some lucky students, they will be able to attend Harvard for about the same costs of attending a state university.

This increased access, follows earlier schemes at Princeton, Yale, Penn, Stanford, Harvard, Duke, and other elite schools to open their doors to students from families earning less than $50,000–$60,000 on a tuition-free basis.

I hope this is the start of something extraordinary and I appreciate the leadership shown by the Trustees of these elite schools. We need more elite schools across the country to join the effort.

As I suggested earlier, educational opportunities at Duke and UCLA School of Law opened doors for me. I was able to move out of an urban ghetto and to learn to study. I was able to explore ideas and to become a productive citizen. President Faust of Harvard is correct—"Education is access."

Harvard’s plan is exceptional because it conceives of access beyond rich and poor families. Its goal is to help more families afford the full "Harvard Experience," that is the in and out of class, on- and off-campus life.

I am optimistic that many other elite schools with billion dollar endowments will follow Harvard. I am also hopeful that more state universities will develop new initiatives to expand the cross-section of students who can afford to enroll in the flagship state universities across the country.

My guess is that most Americans attend public colleges, universities, and regional community colleges. So long as that is the case, those schools must also open their doors through creative programs to reduce or eliminate tuition for students from families earning below $50,000 and expand grants and work study opportunities over loans for middle- and upper-income families. They might also initiate loan forgiveness plans to reduce the overall educational debt which saddles so many college graduates. Harvard’s plan is also brilliant because it reduces the competition between lower- and middle-class kids, and sends the ancillary message that children who work hard and prepare themselves may get a shot, even if they could not otherwise afford to attend at usual rates.

I never believed I deserved better educational opportunities than other students. But I have always believed I deserved the same chance to learn, especially in the earliest years of life.

With leading private and public schools expanding programs at the top, it is also time to rapidly expand programs at the bottom of the pipeline to ensure that there are thousands of talented students prepared to take advantage of greater access. We need more public leadership in every state to expand early literacy opportunities and pre-K learning.

Even if our courts refuse to protect a right to educational access, schools can lead the way to improving the life chances of millions of Americans by opening doors to our best schools.

Life is full of great irony. Bill Clinton was nearly impeached for lying about a sexual dalliance with a female intern. Now a series of Republicans are embroiled in their own scandals, but this time all the allegations involved men with men.

By almost all accounts, the repeated gay sex allegations against prominent Republican lawmakers, consultants, lobbyists, and advisors during the past year or so have laid bare apparent contradictions between the followers’ anti-gay rights creed and their own lives on-the-down-low. Representative Richard Curtis’ fall from party grace is just the most recent scandal, featuring a conservative Republican, anti-gay rights stalwart caught in the crosshairs of a same-sex solicitation allegation. Curtis allegedly hired a male prostitute to join him at a hotel for sex.

Curtis’ demise follows Senator Larry Craig’s humiliation for allegedly soliciting sex from a male undercover police officer in a Minneapolis airport toilet.  And let’s not forget Ted Haggard, the evangelical anti-gay rights crusader and Bush advisor, who was hounded by accusations for allegedly paying a male prostitute for services. Or the prominent missing and exploited child advocate, Representative Mark Foley, who allegedly sent frequent sexually explicit emails to teenage males in the Congressional page program. And then we have Florida representative Bob Allen, who some might describe as a burly man, who allegedly offered another “burly man” $20 for oral sex. Apparently, all of these “straight” men betrayed their families, their constituents, their friends, and their party. Some allegedly broke laws that they helped champion. All of them have a public record against protecting the civil rights of gays and lesbians.

Yet, these cases present significant challenges for me because I have spent much of the last year examining whether the Constitution must be read to protect the personal privacy and equality of American citizens who are gay and lesbian. In a forthcoming article, I have concluded that gay and lesbian citizens must have the same fundamental rights as other citizens, including the rights to vote, travel, and to make private choices with their consenting adult partners to enjoy private sexual intimacy and to marry. For me, neither the due process clauses nor equal protection guarantees of the American Constitution permit arbitrary discrimination against homosexual citizens. My recent work suggests that some of the alleged acts would require legal protection, especially when done in private and between consenting adults.

Here’s the irony. I want to champion equality, liberty, and personal dignity for all American citizens, including those who choose same-sex partners, but I also want to condemn the hypocrisy and abuse of power by politicians like Curtis, Craig, Haggard, Foley, Allen, and others who have vociferously targeted gay and lesbian citizens for discrimination. I oppose their double standards.

Now some of the allegations are more serious, especially those involving the alleged abuse and exploitation of children, as well as the misuse of public office for personal gain or sexual favors. In my view, children need the protection of laws that most adults do not. Few, if any, children can protect themselves from sexual exploitation. And adults who sexually abuse and exploit children do physical and psychological harm unlikely ever to be undone. Those alleged crimes should be prosecuted.

Yet, other allegations are of much less significance. I just don’t care as much if Curtis wears women’s lingerie. It is not a crime. I also care little if Craig or Allen like giving or having oral sex with other men, although surely the law could insist that such sex acts occur in private places rather than public toilets and other public places. I also don’t care as much if Curtis and Haggard buy the services of adult male prostitutes. First, my standards for adults are different. More often, adults have more choices and the role of law is to protect individual choices, especially when it is more difficult to identify real harms. Second, unless we are willing to open all of our homes and bedrooms to public scrutiny, it is simply impossible to enforce sex for hire and oral sex bans impartially. And if the law cannot be enforced impartially or if lawmakers are unwilling to enforce laws equally, I will not support those laws.

Too often, those who cast stones live in glass houses. The law should not be a tool for hypocrites, whether Republican, Democrat, or third party hypocrites.

There should be no shame in same-sex intimacy or love. Adults should not have to lie about their homosexuality and many of their private choices should be equally protected under impartial laws.

I hold great disdain and contempt for those who misuse civic power to abuse others. The Republicans made same-sex marriage a wedge issue to secure President Bush’s 2004 re-election. The Democrats failed to stand up and defend the rights of American citizens who are gay or lesbian.  Neither national party really has clean hands regarding protecting American citizens who are gay or lesbian. Neither is in a position to cast stones.

Thanks to Rev. Al Sharpton, Martin Luther King, III, and thousands of other friends, family, and supporters, much of the world has by now seen, heard, or read about the tragic story of Robert Bailey, Mychal Bell, Carwin Jones, Bryant Purvis, Theo Shaw, and Jesse Ray Beard – the Jena 6. After a school fight which left Justin Barker, a white student, severely beaten, the six black youths were arrested and initially charged with attempted second degree murder. Later, the charges were reduced to aggravated second degree battery and conspiracy. Usually, a charge of aggravated battery requires the use of a deadly weapon. Here, the local prosecutor, jury, and judge decided the deadly weapon was a tennis shoe. Despite their ages, all but one were charged as adults.

The Jena 6 story began in August 2006, when a new black student at the high school asked an administrator if it was permissible for black students to sit under a tree where white students traditionally gathered. After black students sat under the tree, nooses were found hanging from the tree the following day.

Despite the clear threat and intimidation implicit in the hanging of the nooses, the three white students responsible were charged with no crimes. Instead, the local board of education overruled the Principal’s recommendation that the white students be expelled. The white students were assigned to an alternative school for a few days and then served in-school suspension.

Outraged by this lenient punishment, black students gathered again under the so-called "white tree" to protest. The Principal then apparently called an assembly and invited local police and the district attorney, Reed Walters. Many of the black students believed that Walters was threatening them when he reportedly said, "With one stroke of my pen, I can make your life disappear." His subsequent actions confirmed their fears.

In December 2006, Robert Bailey, one of the Jena 6 defendants, and a few black friends tried to enter a party attended mostly by whites. They were attacked and beaten by a group of white men. Only one of those white men was charged with simply battery.

A day or so later, a white student who had been at the same party encountered Bailey and some friends. After an argument, the white student produced a shotgun. Bailey and others took the gun away from the student. The black students were charged with theft of a firearm, second degree robbery, and disturbing the peace. Apparently, no charges were brought against the white student who threatened the black students with a gun.

Justin Barker was attacked by black students a day or so later. They allegedly punched and kicked him, rendering him unconscious. Barker was treated and released from the hospital after a couple of hours and attended a high school social that evening.

The Jena 6 story is a reminder that despite all the rhetoric to the contrary, it remains true in the United States that there is one set of laws for whites and a different set for blacks. The case tells me that it is still true that in too many locales, black people have no rights that white people must respect. Jena reminds me of Money, Mississippi; Little Rock, Arkansas; Scottsboro, Birmingham, and Selma, Alabama; as well as so many unsung, unknown communities where some who control the white power structure misuse it to abuse black people.

The American criminal justice system is decidedly anti-black. The entire system is infested with racial bias and animus. And too many prosecutors in large and small towns like Jena, Louisiana, use their enormous power in racist and draconian ways to punish blacks for behavior or conduct that receives no criminal punishment when done by many whites. Surely, the message in Jena is that blacks who don’t stay in their place will be punished.

Reed Walters deserves much of the blame in this case. But it also took a jury and judge to indict and convict Mychal Bell in June of 2007. Fortunately, an appellate court has overturned Bell’s conviction on the ground that he should not have been charged and tried as an adult since he was only 16 when the fight occurred. But that reversal in no way addresses the deep-seeded racial animus present in the whole episode. Moreover, Bell still faces aggravated assault charges which could render him in juvenile detention for four more years.

People of goodwill of whatever race or color must lift up their voices and repudiate the patently racist administration of justice in Jena and in every other town in the United States. We must demand action against prosecutors who abuse their power on the backs of black children. We must galvanize our communities to run those prosecutors out of public office when they breach the public trust by violating core anti-discrimination constitutional values. They are not above the law and they should be made to pay for their racist behavior. The law may protect Walters’ right to believe in the racial superiority of the white race, but it must not allow him to misuse the power of the state to enforce his private prejudices.

    With less than one month before the beginning of the new term of the United States Supreme Court, I have been reflecting on the notable lessons from the last term and wondering how the next President might shape the future of the Court.  My hope is that the Democrats can avoid the debacle of the last national election and nominate a candidate who will embrace the traditions of the National Democratic Party.  The next President has a huge challenge, not the least of which is to improve balance and diversity on the Supreme Court.
    It seems clear to almost every close observer that the Court is now the most conservative in the past fifty years.  Also, most would now agree that Associate Justice Anthony Kennedy has assumed the status of former Associate Justice Sandra Day O’Connor as the key swing voter.  The current Court will likely reverse or limit the major civil rights statutes adopted in the wake of American Apartheid, even though it will decide less than half the number of cases rendered by the Court only fifteen years ago.  Finally, as more members of the Court enter the winter of their terms, it is increasingly likely that the next President might have a profound influence on the political balance within the Court.
    President George W. Bush has finally accomplished what former President’s Nixon, Ford, Reagan, and his father could not.  With the consent of the U.S. Senate and after nearly thirty years of effort, the Republicans now have a solidly conservative Supreme Court.  Of course, the great irony is that this has occurred when the Congress is controlled by the Democrats.
    I don’t think it is too soon to speculate that the addition of Chief Justice Roberts and Associate Justice Alito has tilted the Court sharply to the right.  Roberts and Alito have wasted no time illustrating their true colors; they are politically conservative men who will use their enormous power to interpret the Constitution to advance the interests of the powerful, government and business, against the weak.  It appears they will join each other 90 percent of the time and Associate Justices Scalia and Thomas nearly 80 percent of the time, limiting the remedial and corrective power of the Constitution.
    If last term is representative, Justice Kennedy is the pivotal member of the current Court.  Every advocate appearing before the Court, especially in closely contested, controversial cases, will need to secure Kennedy’s vote to prevail.  Of the two dozen sharply divided cases last term, Justice Kennedy was 24 and 0.  Thus, in one-third of all the cases decided last year, Kennedy’s vote was indispensable.  Therefore, despite Roberts’ leadership, it is reasonable to call this Court the Kennedy Court.
    Mr. Justice Kennedy is an unpredictable conservative.  He joined the hard-core conservatives on the Court to strike down a late-term abortion procedure, to strike down racialized efforts to maintain integration in public schools, and to subordinate the important antidiscrimination principles of Title VII to a weak statute of limitations claim advanced by the Bush Administration.  On the other hand, Kennedy implied that government could in some cases adopt policies to eliminate racial isolation in public schools.  He is also the Justice who has not allowed the conservatives to overrule entirely a woman’s right to terminate a pregnancy before viablity.  And, he is the Justice who has insisted that judicial/legislative conservatives cannot deny gay and lesbian persons basic fundamental rights.
    Perhaps Kennedy is best described as a cautious conservative.  I look forward to him clarifying his judicial philosophy over the next few terms.  Perhaps he will shift farther right, similar to how Justice Stevens, the longest serving and oldest member of the Court, has shifted to the left over his term.  He has been on the Court for many years and what we see now may be what we will always get.
    Last term provides an early glimpse of what we might expect of the Court until another Justice joins the Court, likely after the next national election.  I expect the Court to continue its recent trend of deciding only 70 to 75 cases per term.  Under conservative leadership, the Court has significantly cut the number of cases it decides each year.  Since I have long agreed with the view that justice delayed is justice denied, I would prefer the Court to decide more cases.  If there is a silver lining in the few cases currently decided, it is that since I am not a political conservative, this Court is not deciding two hundred cases each year.
    The next major shift for the Court will likely occur when a new Justice is nominated and confirmed.  The current Court is fixed in a 4–1–4 frame.  Because Kennedy votes twice as often with the conservatives, in controversial cases the conservatives have the stronger hand.
    All of that might change if a Democrat wins the White House and the Democrats maintain control of Congress.  In the meantime, all appeals depend on Justice Kennedy’s interpretive vision of the Constitution.  If he is against you, so is his Court, for now.

Candidates will say anything to get elected.  They are for choice, but against it sometimes.  They are against gay marriage, but for civil unions sometimes.  They are against the Iraq war and will get the United States out of Iraq, but not anytime soon.  I wish there were a national party that stood for basic core values, such as respect for the human dignity of all people and the right to live in a clean, safe, war-free zone, with sanitary drinking water, adequate food, a living wage, safe shelter, and basic health care.  Most of the world's population lacks many of these essential conditions for life.  And there seems to be little reason for hope of significant change in our world no matter who is elected president of the United States in 2008.  World leaders are terrible at admitting mistakes and changing direction.  Instead, they often dig in and create intractable quagmires. 

Consider Iraq.  Over the past few months, it has become increasingly clear that the leaders of the national Democratic Party and the Democratic candidates for President, perhaps with the exception of Bill Richardson, will not lead the U.S. out of Iraq.  Indeed, recent campaign rhetoric suggests that like the Republicans, most Democrats will not get out of Iraq for many years, probably decades.  We are told we cannot leave because of possible civil war, genocide, or regional instability.  We cannot leave because we have made the situation there worse.  We are told that if we exit, it will be an admission of defeat. 

I think this is a monumental mistake and will harm the United States' role in international relations for decades.  I would get out immediately, ending the war now and paying the consequences after the exit.  And no matter how much it costs us to leave now, I am not persuaded there is any reason to continue the Iraq war for even one more day.  I think the costs of staying the present course are far greater. 

When you make a mistake, one of the most important steps in correcting it is to admit the mistake.  Many American political candidates still refuse to admit all of the mistakes leading us into another Iraq war, not to mention all the ones regarding poor planning after it began.  It should not be difficult to admit that the Iraq war has been a mistake from the start.  Even if you think that President Bush didn't lie to the American people about the reasons for the war, there is plenty of evidence that Iraq had no weapons of mass destruction and our national intelligence apparatus failed completely.   Our mistakes have been compounded by newer ones including torture and murder.  We have lost count of American casualties and the thousands whose lives have been altered forever.  Also, no one seems to know exactly how many tens of thousands of Iraqi civilians have been killed or wounded during this war.  And each additional death or maiming, American or non-American, only worsens the long-term costs of starting a war for bad reasons.   

Rather than pay billions each week to continue the war, I would end the war today and use less money to develop an international diplomatic coalition to promote peace and stability in Iraq and the region.  No diplomatic solution is possible as long as the U.S. is leading a war coalition. 

I have often asked myself over the past five years if I would be willing to die for American national interests in Iraq.  My answer was no when President Bush announced his Axis of Evil and it is no today.  Since my answer has always been no, I grieve every death there.  I feel American men and women, many too young and too inexperienced for any battlefield, are dying in vain.  I also think the threats of terrorism against the U.S. are greater because of the war in Iraq. 

It is unclear to me why any Americans need to die in Iraq.  Is it for weapons of mass destruction or terrorism?  Is it for oil?  Is it for regional stability?  Is it for 9/11?  I am not satisfied with any of those justifications.  None of them is worth my life, so none is worth the life of any other American.  Moreover, I am convinced the President would not sacrifice one of his children either.  If politicians had to go to war or send their own children, I suspect there would be fewer wars and we would never have gone to Iraq. 

By all accounts, Iraq is a terrible, dangerous place today.  Hundreds die weekly.  Many commentators would say Americans have made it worse by its unprovoked war.  Since I think the war was misguided from the beginning, I would not waste time debating whether conditions are worse now.  Instead, I would end the war and begin the long, arduous work of paying for the devastation the war has caused.  But I would not pay with American or Iraqi lives.  I would make all Americans share the burden for our leaders' mistakes.  Our current course it too easy for most Americans because they are not in Iraq, they have not lost a family member yet, and they do not have to sacrifice very much.  The burden of President Bush's many mistakes in leading us to war has fallen disproportionately on a few military or national guard families.  They have been forced to give too much for Bush's mistakes.  They should not pay the consequences.

Last month, I predicted that the current Supreme Court would strike down the school assignment plans in Seattle and Louisville as violative of the Fourteenth Amendment's Equal Protection guarantee. The results are now in and they can only be described as mixed. I was right and I was wrong. The Court, with Justice Anthony Kennedy's pivotal vote, did strike down both school plans. And the Court was significantly fragmented. However, at least for now, Grutter is safe in the higher education context.

Fearing the worst, I hoped for a highly fractured opinion that would be of slight precedential value. There is something in the opinions for advocates on all sides. As is often the case with such a divided Court, it is difficult to identify winners and losers. It is also a tortuous task for citizens to discern clear meaning from opinions that run nearly two hundred pages. It seems likely that the Court's recent school desegregation cases will set off a new round of litigation throughout the country and it will be several more years and circuit splits before the Court will clarify when race consciousness is constitutionally permissible.

What we do know now for certain is that the Court remains sharply divided regarding when, if ever, racial classifications are permissible. Four members of the Court appear opposed to virtually all racial classifications, absent a specific remedial justification grounded on specific past discrimination by the government. For Roberts, Scalia, Alito, and Thomas, "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race." This axiom is seductive and has had currency with academics like William Van Alstyne for nearly three decades. They will allow racial classifications to remedy the effects of past discrimination, but they see almost no link between current segregation and past segregative conditions. It is unclear what they think about diversity in higher education, but they distinguished Grutter's rationale and held it inapplicable to these school assignment plans.

Four other members of the Court would have upheld the local school policies on the ground that efforts to achieve racial integration are constitutionally distinguishable from efforts to continue racial segregation. They continue to agree with former Associate Justice Harry Blackmun that to get beyond race discrimination we must take account of race. For Breyer, Stevens, Ginsburg, and Souter, "it is a cruel distortion of history to compare ... Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined). For the dissenters, government can dismantle educational caste without violating the equal protection guarantee.

And in the middle of these divergent camps on the meaning of constitutional equality sits Justice Kennedy, affirming that these challenged school assignment plans were not narrowly tailored and, thus were unconstitutional racial classifications, but insisting that school officials may "adopt general policies to encourage a diverse student body, one aspect of which is its racial composition." Justice Kennedy wrote, "If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of the students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in a different fashion solely on the basis of a systematic, individual typing by race." Accordingly, Kennedy concluded school boards had various permissible race conscious means of bringing together students of diverse backgrounds and races, including "strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. Here, Kennedy borrowed from recent redistricting cases to conclude that consciousness of racial demographics in either context does not necessarily lead to the conclusion that strict scrutiny should apply to general policies. What is constitutionally impermissible is "assigning to each student a personal designation according to a crude system of individual racial classifications...."

Like Lewis Powell 30 years earlier in Bakke, Kennedy now stands alone. He rejects the view that all government race consciousness is constitutionally impermissible and he rejects the view that government can use racial classifications in school assignments where the goal is educational integration. The question now is whether Kennedy’s opinion will gain the stature that Powell's did, and then, whether it will suffer the same jurisprudential fate.

Nearly 55 years since Brown v. Board of Education was first argued and almost 30 years since U.C. Regents v. Bakke, the promise of equal educational opportunity remains one of the most elusive guarantees and most vexing issues in American life. None of the opinions say enough about educational equality and educationally effective schools for all children. Because of its colorblindness, the majority fails to see the relationship between racial discrimination in almost every aspect of American life for most of our history and current racial segregation in housing and schools. For all of his concerns about the messages implicit in racial classifications, Chief Justice Roberts fails to recognize that parents would not need to compete for school assignments if schools were academically comparable rather than vastly different within the same districts. The majority ignores reality; it ignores that, on average, throughout the United States, white children have regular access to better educational resources throughout their most formative years than colored children. In my view, under a constitutional regime that prohibits caste, government may not permit white children to have regular access to better educational resources than colored children without violating the central holding of Brown. The majority would use Brown, but render it sterile by ignoring the context in which its proponents argued that children should be assigned on a nonracial basis. I understood Brown to mean that white school officials violated the constitution when they assigned colored children to segregated, inferior schools. But it blinks reality to assert that either Seattle or Louisville promoted segregation in any way.

As a product of racially segregated schools and racially isolated communities, the Supreme Court could never convince me that we have achieved Brown's mandate of equal educational opportunity. If Brown only meant that children would be assigned on a nonracial basis, then it does not merit all the praise it has received from the Court. Brown should not be read to preserve racial advantages for white children or artificial integration. In context, Brown should be read to mean white people cannot relegate colored children to second class schools and colored people cannot relegate white people to inferior schools. I am convinced neither Seattle nor Louisville violated this principle so I would have sustained both plans. Even if all racial classifications are necessarily suspect, they are not all the same, and every member of the Court surely knows the distinction between invidious classifications and noninvidious ones. For if there is no difference, then strict scrutiny is always fatal in fact or a charade.

I was wrong about Justice Kennedy. He did not use these cases to overrule Grutter. It remains intact, for certain in higher education, and it may have some legitimate uses in the K-12 context. Moreover, Kennedy distinguishes general policies adopted with limited race-consciousness/awareness of racial demographics to achieve equal educational opportunity. School officials seeking to promote the benefits of educational diversity, including reducing the harmful effects of racial isolation, should not assign kids to schools by race or adopt racial balancing schemes. Instead, they should articulate the legitimate goal of promoting equal educational opportunity and adopt race-neutral strategies, recognizing the relevant local demographics. School officials can remedy the effects of past discrimination. They must justify all racial classifications, but they need not pretend to be race-blind. Kennedy will insist that the government show that race-neutral criteria failed before he will agree that a racial classification is narrowly tailored.

Kennedy has opened the door for school officials to promote diverse schools. My hope is that more officials will take his lead to champion equal educational opportunity. If they do so, parents will not need to school shop and their children will receive an adequate and equitable education at any school. Only then will America's legacy of educational apartheid end.

by Bryan K. Fair

    It's that time of year again, when Supreme Court watchers are quite anxious.  The term has nearly ended, but a few of the most important cases await final decision.  The two cases I remain most concerned about are from Seattle, Washington and Jefferson County, Kentucky.  They involve voluntary desegregation plans in public schools, and they ask the Court to decide if those plans that make some limited use of race in public school assignments, violate the constitution or federal law.  The lower federal courts have in both cases upheld the local policies on the grounds that achieving or maintaining educational diversity is a compelling governmental interest and that both plans are narrowly-tailored.  That is judgespeak for we have read what the Supreme Court said in Grutter and Gratz, the Michigan affirmative action cases from two terms ago.  But that Supreme Court no longer exists. 

    So, what can we expect from the Roberts/Kennedy Court.  The answer for me is, not much.  First, in our great country, there is no federal constitutional right to education.  Also, there is no right to equal funding of educational opportunities.  And, there is no constitutional guarantee to equal curricular offerings.  Jonathan Kozol has eloquently described the savage inequalities in American schools, but I do not expect this Court to use these cases to declare such disparities inherently unequal and inconsistent with the Equal Protection guarantee.  It seems much more likely that this Court will equate these modern desegregation policies with former segregation policies, turning the Equal Protection Clause against the children it was supposed to help.  Despite fifty years under Brown v. Board of Education, the law in the United States has not protected educational equality.  Even more, this is another illustration how the law simply serves the interests of the rich and powerful; it doesn't remedy systemic inequality.  It is absurd to expect the rich and powerful to use the law against their privileges.  Instead, the law and its great expositor, the Supreme Court, will always underserve those seeking substantive reform.  This is the dark side of the law.

    Second, this conservative Court believes that the best way to end discrimination is to ignore race in every context.  But such color-blindness does not end discrimination.  It ignores it and its effects on the lives of the most vulnerable Americans:  those children who attend its worst schools, in its worst neighborhoods.  The Court has reminded us recently how dysfunctional some school systems are, but its critique arose in the context of spending public money on vouchers at religious schools.  I just don't think members of the Court really understand or care how trapped some kids are by educational inequality.  If they did they would read the Constitution far more broadly and correct the massive disparities in our public schools, imposing on school officials an affirmative constitutional duty to create one public school system for all Americans, not one for the rich and one for the poor, or one primarily for wealthy whites and a second for the poor of whatever color.  It would take courage to announce my rule and I don't look to this Court for much of it.

    Third, the Court has been asked to determine if the same principles that guided the Court in the Michigan affirmative action cases to uphold a limited use of race to achieve educational diversity, should apply in the K-12 context.  Since Justice Kennedy was a caustic opponent to Grutter, I think it is quite likely that he will join Roberts, Alito, Scalia, and Thomas to strike down even this very limited use of race as one of many factors in school assignment plans.  When he does so, he will, in effect, endorse the current resegregation of American schools and overrule the letter and spirit of Brown.  And the victims will be more generations of vulnerable kids, denied again an equal chance at the American Dream/Lie.

    I hope I am wrong, but I think it is quite possible that Justice Kennedy will have his moment to reverse affirmative action in higher education as well.  His dissent in Grutter was not measured and cautious.  If he believes it was wrongly decided as he has said, and if he has now the votes to overturn it, I expect him to seize the day.

    Fourth, I am an integrationist and the best I can hope for from this Court is a sharply divided decision, with multiple concurrences and dissents, and little at all about the important legacy of Brown.  If the opinion is fragmented, it is often difficult for lower courts to find common meaning and we will have to wait for future Courts to clarify what the law is.  That offers little consolation if President Bush's replacement makes similar appointments to the Court.

    Fifth, regrettably, the Court will surely miss another opportunity to teach the nation about what Thurgood Marshall called the generative power of the Constitution.  If I were on the Court, I would explain the difference between policies advancing invidious racial bias and those advancing integration.  The Court said in Brown that segregation was inherently unconstitutional.  It declared that segregation by the government stigmatized colored children in ways likely never to be undone.  I would explain that promoting integration is inherently constitutional and that educational integration may be our last best chance at undoing our deep legacy of segregation.  I would explain that there is a constitutional difference between assigning all educational benefits to whites, for example, versus telling whites and others that integration is a paramount goal and to achieve it a few families will not get their choice of schools.  And I would explain how this contest for placement at good schools is inconsistent with equal protection.   Every child is constitutionally entitled to a good school.

    It always amazes me that the modern conservative Supreme Court so easily acknowledges the constitutional hardship of a few wealthy or white people, but it has such difficulty seeing the cumulative disadvantage of millions of persons who still suffer from generations of racial exclusion.  Too often, the Court has turned the Constitution on its head, interpreting it to provide no relief for those with the greatest need, in this case for meaningful education so they can improve their lives.  Yet, it seems the Supreme Court is quite often least helpful when it is most needed.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. . . .  Freedom extends beyond spatial bounds.  Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.

                                           Lawrence v. Texas,

                                           539 U.S. 558, 562 (2003) (Kennedy, J.)

 

            Last month, the Supreme Court held that Congress had the power to ban a rarely used late term abortion procedure, so long as the regulation contains an exception for medical emergencies where the woman's life may be in jeopardy.

             While I am pro-choice, I do not think that the recent decision is a significant change in existing abortion law.  My sense is that 90 percent of all abortions occur early in a pregnancy, so the late term ban is irrelevant.  But, the decision portends a much broader agenda beyond the abortion debate.  Indeed, what really may be at stake is not abortion, but rather Griswold v. Connecticut's right to privacy.

              For nearly 35 years, the Supreme Court has held that the Due Process Clause of the Fourteenth Amendment protects a woman's right to terminate a pregnancy.  More recently, the Court has held that government may regulate abortions, but may not impose an undue burden on a woman's choice, prior to fetal viability.  Under the new standards, almost all regulations have been sustained, unless it appeared to the Court that the purpose or effect of the regulation was to place an obstacle in the path of the woman's choice.  So far, the Court has only invalidated a spousal notification requirement and a partial birth ban that failed to include a health exception.

              Even though the basic fundamental right to terminate a pregnancy before viability is still protected, Roe v. Wade is not the case it was in 1973.  The trimester framework is gone and the Court no longer applies strict scrutiny, its most rigorous review standard.  The Court has said that after viability the government could proscribe all abortions, except those necessary to protect the life or health of the mother.  It is this late term abortion area that has been styled "partial birth" abortion or "infanticide."  Those labels are loaded and have little to do with the emergencies that may arise late in a pregnancy, or whether in a particular doctor's medical judgment a specific abortion procedure should be used.

             There is a dispute among medical professionals over whether it is safer to use intact or nonintact dilation and extraction for post-viability abortions.  I do not presume to know whether one or another abortion procedure is safer or more gruesome, but I question the general competence of Congress to decide such a question.  Moreover, there is some irony in the fact that the modern, conservative Supreme Court has been loathe to acknowledge Congress' competence to enact many other federal statutes -- to protect women from domestic violence, to keep guns away from schools, or to regulate local cultivation of marijuana for medical use -- but defers to Congress on its abortion procedure ban.

              Both the federal district court and the federal circuit court ruled against Congress, concluding that the Partial Birth Abortion Ban Act was unconstitutional because it placed an undue burden on a woman's right to choose.  The courts also found the statute was vague regarding whether it covered only intact D&E procedures or nonintact D&Es as well.  Finally, the courts held the statute was flawed because it did not contain the required health exception.

              The Supreme Court reversed the lower courts, concluding the statute was neither vague nor overbroad and did not impose an undue burden on the woman's right to terminate a pregnancy.  The Court agreed that Congress could ban intact D&E, so long as there is an exception for maternal life.  The Court read the Act to apply only to one abortion procedure -- intact D&E.

              The result is not really surprising since Justice Kennedy had previously expressed his support for a similar Nebraska ban on the use of that procedure in Sternberg v. Carhart.  With the addition of Chief Justice Roberts and Justice Alito, Kennedy now had five votes to sustain such a ban.

              The Court has likely narrowed Roe and Casey in at least one important respect:  the health exception requirement appears to mean to the majority of the Court that the abortion is necessary to save the woman's life.  What is unclear is who will make this judgment.

              I do not think that Justice Kennedy will rollback the basic fundamental right to terminate a pregnancy.  But it is possible that with one more vote, Justices Scalia, Thomas, Roberts, and Alito could eliminate this fundamental right.

            As I suggested at the outset, I want the government to stay out of my private choices about family, marriage, and my home life.  The right to privacy has provided important safeguards against public animus or discrimination.  As the government and courts grow increasingly invasive, we need privacy rights more than ever.  We need constitutional protection to make some fundamental choices for ourselves.

Here we go again.  Phyllis Schlafly and her allies have recently rekindled their caustic, vituperative assault on the renamed Women's Equality Amendment and its supporters, saying, "Equal rights for women:  Wrong then, wrong now."

The proposed amendment is simple:

Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

 

It says nothing about abortion, same-sex marriage, or drafting women.  Nonetheless, Schafly and others will be traveling the country to encourage state legislatures to reject ratification.  Schafly claims radical feminists, now with the support of a radical, Democrat-controlled Congress, seek to advance abortion, military conscription, and the homosexual agenda.  These arguments are designed to scare women.  It's an old trick.  We must defeat it.

For many reasons, Schafly was wrong in 1973 and she is wrong now.  First, she cannot pretend to know how our current Supreme Court would interpret the Women's Equality Amendment, and there is little reason to assume that it would adopt a "radical feminist interpretation" on any issue.  And what is radical about honoring the equal citizenship principle anyway?  It seems to me that the indefensible, extremely radical position is the one that seeks to deny basic equality for all.  Thus, if we are to call names or to be afraid, the target should be those men and women who seek to deny the full power of citizenship to women.

Second, there can never be too much equality.  Instead, the problem in American law and history has consistently been too much inequality.  Indeed, American history offers much more of a monument to unequal rights than equal rights.  In 1987, Associate Justice Thurgood Marshall reminded all Americans that our Constitution was defective from the start, requiring numerous amendments, most notably, the Equal Protection Clause of the Fourteenth Amendment, to bring more Americans within its scope.

Third, for most of U.S. history, women have had no rights which men were bound to respect.  Women were invisible in law, often on par with children.  That is why women and a few empathetic men organized the first Women's Rights Convention nearly one hundred sixty years ago.  Those delegates wrote their Declaration of Sentiments, outlining the many different ways that men used the law to make women unequal.  We must never forget that women are only unequal to men because men used the law to disadvantage women.  The women of Seneca Falls understood that what had been described by men as a protective pedestal was in fact a caste cage.  They demanded that men take their feet off women's backs.  Men have resisted change at every turn, with the surprising support of some women.

Fourth, despite the adoption of the Equal Protection Clause, the Supreme Court rejected the principle of gender equality until 1971, around the same time that Women's History was acknowledged as a serious academic discipline.  And even when the Court changed its interpretation, it did not insist that government affirmatively dismantle gender caste.  The Court adopted a legal framework which left most gender disadvantage invisible to legal remedy.

Fifth, Sojourner Truth, Susan B. Anthony, Elizabeth Cady Stanton, Lucy Stone, Myra Bradwell, and Virginia Minor, among many other brave women, were all told by the Supreme Court that basic constitutional principles provided them no protection against discrimination.  Women were closed out of political participation, prevented from holding certain jobs, and were denied rights available to men.  According to the Court, the equality guarantee applied one way for men and differently for women, allowing governments to disadvantage women.

Sixth, since women were locked out of men's clubs, union halls, and legislative assemblies, they formed their own national women's associations to advance their rights to equal employment, equal wages, and the right to vote.

Seventh, finally, in 1920, Susan B. Anthony's dream of national women's suffrage became a reality, at least for many white women.  African American women were denied that basic right, along with other civil rights, until the 1960s.

Eighth, it was also in the 1960s that the federal government approved birth control and the Supreme Court declared that states could not prevent married persons from receiving birth control devices from their doctors.  Moreover, in 1963, the Congress enacted the Equal Pay Act.  In 1964, Congress enacted Title VII, barring discrimination in employment on account of sex or race.  These legal reforms have still not eliminated gender caste, even if they have made it slightly easier to present a gender discrimination claim.

Ninth, women have also led campaigns to improve workplace safety, minimum wages, fair hiring practices, and for paid parental leave, affordable childcare, against domestic violence and sexual harassment in the workplace.  Much more work is needed in every area.

Tenth, in summary, women have had to fight for basic rights that most men have been able to take for granted.  That's unfair.

 It is time we stopped treating our mothers, sisters, and daughters as second-caste persons.  The consequences of gender inequality have been catastrophic.  Equality for all:  right then, right now!