Women’s Rights Delayed Until 1940, Cut in 2022

A "long history and tradition in the United States" is a rather ambiguous phrase that begs many questions.

October 10, 2022 0 comments

In case you missed it, the Arizona Court of Appeals concluded on Friday that the lower court erred in restricting its review to the attorney general’s motion to lift a 50-year-old injunction against a pre-statehood law that nearly totally criminalized abortion.

Republican Arizona Attorney General Mark Brnovich asserted the 1864 law “reflects the will of the state legislature” as he tried to reinstate it.

A law passed in 1864 could not possibly reflect the will of the state legislature or the constituency, then or now.

First, the Arizona State Legislature did not exist until statehood in 1912, when the Arizona Constitution established it.

Second, even in a somewhat progressive Arizona at the time, women didn’t vote until 1914.

Though enslaved people were emancipated in 1863, the Civil War ended in 1865, the 14th Amendment in 1868 granted formerly enslaved people U.S. citizenship [while still attaching women’s citizenship to her husband’s], the 15th Amendment prohibited denying a citizen the right to vote based on that citizen’s “race, color, or previous condition of servitude” in 1870 [still excluding women], and the 1965 Voting Rights Act directed the Attorney General to enforce the right to vote for both male and female U.S. citizens, the first presidential appointment of a Black man didn’t occur until 1966, while the first Black woman came in 1977.

Congress first proposed the Equal Rights Amendment (ERA) to establish full equality for women in 1923 to abolish legal distinctions, and resulting disparities, between men and women in areas such as divorce, property, employment, and other issues. It failed to pass.

During the mid-1970s, a conservative backlash against feminism undercut support for the Equal Rights Amendment, so though Congress passed the ERA in 1972, it ultimately failed to be ratified by the required 38 states, or three-fourths, by the deadline set by Congress.

Over the last 50 years, the Supreme Court has cited the absence of a law prohibiting discrimination based on gender, such as the ERA, when upholding gender discrimination against women.

The 2023 Dobbs decision, which removed 49 years of women’s medical and bodily autonomy freedoms, also argues that courts should not embrace rights that do not have a long history and tradition in the United States.

A “long history and tradition in the United States” is a rather ambiguous phrase that begs many questions:

how long is “long”?

what constitutes a “US tradition”?

“US history” according to whom?

which US “historical” “traditions” should be kept?

does religion get to decide, and if so, which one?

Many groups, including women of all colors and races, did not have rights in the United States for longer than they’ve had many rights, so the answers to these questions are important to me.

A lot.

Arizona’s Long and Messy Progressive History

The right of women to vote in school board elections was proposed to the Arizona Territorial Legislature in 1883, but it was defeated.

The Arizona Territorial Legislature approved a bill in 1897 allowing taxpaying women to vote only in school board elections, but it is found invalid by the Arizona Territorial Supreme Court in 1899.

A bill granting women the right to vote was approved in 1903, but the governor vetoed it.

The Arizona Equal Suffrage Association supported the territorial legislature’s 1909 voting literacy test law.

In the 1910 Arizona State Constitutional Convention, the 1912 Arizona Constitution, and the first Arizona State Legislature, women attempted and failed to win the right to vote.

On November 5, 1912, Arizona voters approve a citizen’s initiative, a direct citizen lawmaking method guaranteed by the new Arizona Constitution, adding women’s right to vote to the Arizona Constitution.

That year, the Arizona State Legislature convened an emergency session and passed a bill allowing women to register to vote and another voting literacy test law, reducing the number of Mexican American and Native-American voters.

Women are allowed to vote in their first primary elections in 1914.

On February 12, 1920, the Arizona State Legislature held a special session to ratify the 19th Amendment.

Arizona was one of 15 states that refuse to ratify the Equal Rights Amendment, preventing it from being incorporated into the United States Constitution.

US History and Traditions

Regardless of where a woman was born or resided, her US citizenship, and hence her right to vote, changed abruptly based on who she married, and this remained true for many women until 1940.

The Naturalization Act of 1790, enacted the same year as the census, granted citizenship only to “a free white person.”

As early as 1804, US Naturalization Acts directly linked married women’s right to citizenship to marital status. The Naturalization Act of 1855 linked a wife’s citizenship and those of her children to the citizenship of their white husband or father.

According to the Expatriation Act of 1907, a woman’s nationality was determined by her marriage and an American woman who married a foreigner lost her citizenship if her husband was not naturalized. The law was retroactive, and many women were unaware that they had lost their US citizenship because it occurred without notification.

The 14th Amendment, enacted in 1868, granted African Americans citizenship rights, though the citizenship of Black women still depended on the citizenship of their husbands.

The 15th Amendment, enacted in 1870, granted men of all races the right to vote, but not women.

Although the 19th Amendment was enacted in 1920, a woman’s US citizenship, and therefore her right to vote, remained dependent on her husband’s citizenship until Congress passed the Married Women’s Independent Nationality Act in 1922.

Even then, regardless of where a woman was born or lived, a woman’s claim to US citizenship did not necessarily extend to “racially excluded” women or women who married men “ineligible for citizenship,” particularly Asian or Mexican.

Following United States v. Bhagat Singh Thind in 1923, practically all Asians were ruled ineligible for citizenship.

The 1848 Treaty of Guadalupe Hidalgo granted Mexicans the right to become citizens. Still, naturalization officials continued to take “their mixed indigenous ancestry into account” and denied citizenship based on whether they appeared to be European or indigenous.

Indigenous tribes in America operated self-governance long before the United States was founded in 1776. Despite this reality, US government officials believed Native Americans should be “assimilated” into America’s “mainstream culture” before being granted citizenship or rights.

When Black American men, and women depending on the citizenship of their husbands, won citizenship with the 14th Amendment in 1868, the government specifically interpreted the law so it didn’t apply to Native people.

It wasn’t until the Snyder Act of 1924 that Native Americans born in the United States were granted full U.S. citizenship. Still, Congress didn’t guarantee Native people voting rights at that time either. 

With the exceptions of the 15th and 19th Amendments, which many states violated anyway, the Supreme Court ruled the Constitution left it up to the states to decide who has the right to vote, and many states decided Native Americans couldn’t, preventing Native Americans from voting in all 50 states for another forty years.

Native Americans, like many other minorities, gained the right to vote by fighting for it state by state. Efforts to disenfranchise Native Americans, particularly those living on reservations, continued through the early 1960s.

The Arizona Supreme Court overturned a section in the state constitution that barred Native Americans from voting in 1948, Utah repealed its law in 1957, and the Supreme Court of New Mexico struck down its law in 1962.

Despite these victories, Native people were still prevented from voting with poll taxes, literacy tests, and intimidation—the same tactics used against Black, Mexican, and Asian voters.

And women, even white women but especially non-white women, didn’t always benefit from the victories as their citizenship rights, hence their voting rights, were still tied to the citizenship of their husbands.

Though Puerto Ricans were granted US citizenship in 1917, a Puerto Rican woman’s citizenship was nevertheless affected by her husband’s citizenship until Congress passed the Equal Nationality Act in 1934.

The 1932 Cable Act amendment removed “racially excluded” US citizenship bars for Hawaiian-born women married to a foreign husband, but only if the Hawaiian woman resided in the US in 1932.

All women did not achieve genuine US citizenship independently, and hence the right to vote, until Congress approved the Nationality Act of 1940.

Discrimination in the naturalization process was still legal until Congress outlawed it by passing the Immigration and Nationality Act of 1952.

But it wasn’t until 1965, when the Voting Rights Act was passed, and additional laws in 1970, 1975, and 1982, that voting became a protected right for all people, regardless of race, ethnicity, gender, or national origin.

The Repubican Regression

Then in 2013, the Supreme Court ruled in Shelby County v. Holder that the Justice Department no longer had the authority to block changes to voting rules with a discriminatory impact in states with a documented history of discrimination.

A federal commission found in 2019 that at least 23 states had passed “newly restrictive statewide voting rules” that negatively affected all the minority groups that had fought state-by-state for the right to vote, many for over 136 years after the US Constitution was ratified.

In 2020, the Supreme Court responded to several emergency petitions, issuing four rulings allowing for restrictions on voting rights.

The summer of 2022 will be remembered as when women were demoted to infancy, again, requiring paternal supervision and advisement, and being equated, in many places, such as Arizona, to a pregnant vessel where a fertilized egg is granted “personhood” rights over said vessel.

And, after a decade of arguing that abortion should be decided by the states, when the Supreme Court delivered the grand prize of overturning Roe, Republicans not only declared 15-weeks is not ambitious enough while almost completely banning abortions state by state, many with no exceptions, ensuring an increase in the already embarrassingly high US infant and maternal mortality rate, but then introduced a federal abortion bill that would both outlaw abortion nationally and remove states from deciding anything about it.

This month the Supreme Court heard arguments in a Voting Rights Act appeal in which Alabama argued that creating a U.S. House of Representatives district containing more Black voters is racially discriminatory because it favors Black voters over other voters.

The lower court ordered a new map after ruling that the Republican-drawn version violated the Voting Rights Act by concentrating the majority of the state’s 27% Black voters in a single district and diluting the rest of the Black population into several other districts at levels too small to have an impact.

The conservative majority of the Supreme Court seemed sympathetic to the Alamaba argument. Whether the Supreme Court will use the case to erode The Voting Rights Act further, or possibly rewrite the definition of state-sponsored discrimination, remains to be seen.

In June, the US supreme court agreed to add a case to its docket that may significantly alter the debate over voting in America and give state legislators enormous influence in establishing rules for federal elections… and the power to change voting results.

The case concerns a challenge to North Carolina’s congressional district plan.

Earlier this year, the state supreme court overturned the Republican-controlled legislature’s plan, ruling that it was so gerrymandered that it violated the state constitution. When the legislature failed to provide a new plan that was constitutionally compliant, the court imposed one created by a special master.

That was illegal, lawyers for the Republican General Assembly said in a petition to the United States Supreme Court.

The Republicans further contend that the Elections Clause prohibits a state court from hearing a state constitutional challenge to any federal election law, including a congressional plan, and that state lawmakers can only make such decisions.

Republicans have complete control of the government in 23 states and have utilized redistricting to secure their advantage in many areas for the next decade.

In a similar case in 2015, the court ruled 5-4 that the elections clause did not bar voters in Arizona from creating an independent commission with redistricting authority through a citizen initiative. In that case, Chief Justice John Roberts was in the minority and authored a vehement dissent.

However, the court’s makeup has shifted dramatically since then. Several conservative judges have previously stated their willingness to accept the concept of restricted court action.

The same “Constitution left voting regulation up to the states” argument was used to keep Native Americans from voting in all 50 states for another forty years following the 15th and 19th Amendments.

And it contradicts at least a half-dozen Supreme Court rulings, federal statutes, another provision of the US Constitution, and countless state statutory and constitutional provisions enacted over the last 50 years.

Judging Time

Now that Roe v. Wade has effectively removed the constitutional right to abortion, many on the religious right are focusing on weakening trust in, and restricting access to, hormonal contraception, primarily the pill.

But it’s not just women’s rights being targeted and restricted in 2022, or even just voting rights for minority populations; Republican state legislators and the Supreme Court appear to have many reversed rights in their sights.

The Supreme Court itself called into question every right previous Supreme Courts found under “privacy rights” specifically.

Alito’s opinion in Dobbs appears to be laying the stage for a challenge to eight years of same-sex marriage.

It was just 55 years ago that the United States Supreme Court abolished state laws forbidding interracial marriage.

And to think, just 20 years ago, the Supreme Court was still letting governments determine how people get it on — or not — in the bedroom.

Just 19 years ago, the Court ruled that criminalizing private homosexual activity between consenting adults violated the Due Process Clause of the Fourteenth Amendment.

Because state laws seldom criminalized sodomy between heterosexual couples or same-sex women, and instead mainly targeted homosexual males, the Court invoked the Equal Protection Clause to overturn its own 28-year decision allowing states to prosecute sodomy.

The Supreme Court ruled 57 years ago that the US Constitution protects married couples’ freedom to obtain and use contraceptives without government interference.

Just 50 years ago, the Supreme Court expanded contraceptive privacy rights to anybody.

Only 26 years ago, the Supreme Court determined that a state could not amend its constitution to deny gays the same basic legal protections as heterosexuals under the Fourteenth Amendment’s Equal Protection Clause.

The Court adopted the “Miller Test” only 49 years ago, which includes three elements for distinguishing between free speech art and obscene content for punishment:

(1) whether “the average person” would find the material appealing to sexual interests, (2) whether the material explicitly depicts or describes sexual actions in a “offensive manner,” and (3) whether the work lacked any “literary, artistic, political, or scientific value.”

Only 53 years ago, the Court ruled that students’ free speech could be restricted if it interfered with the educational process.

The Court extended the prohibition on arbitrary searches and seizures to electronic wiretapping equipment 55 years ago, reversing 28 years of police freedom to tap into any phone line if they “suspected” illegal activities.

Miranda rights were created by the Supreme Court only 56 years ago.

The Court only 59 years ago guaranteed free legal representation for felony offenses.

The Supreme Court held 61 years ago that evidence obtained illegally may not be used against someone in a court of law, citing the Fourth Amendment.

Only 68 years ago, the Court abolished segregation, essentially overturning its own 58-year “separate but equal” judgment.

The Republican chopping block is out for blood.

Eligible voters voting in November, all the way down the ballot, for rational candidates, is the only way to slow down and potentially reverse the blood bath.

And we need to talk to our friends, family, and neighbors about the issues we care about.

2022 is that important.

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