Roe v. Wade

PART IV: Equal Protection of the Laws


Since the Fourteenth Amendment has been invoked to prohibit both abortion laws and sex discrimination, we will now examine both express discrimination and the seemingly new doctrine of "de facto discrimination." Before citing any Court decisions I will quote from James Madison's "Remonstrance" so that you may see that the principle is not novel; "We remonstrance against the said bill: .. Because the bill violates that equality which ought to be the basis of every law .. all men are to be considered as entering into society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights .. As the bill violates equality by subjecting some to peculiar burdens, so it violates the same principle by granting to others peculiar exemptions." We may see this theory put into practice in Strauder v. West Virginia (1879) where reference is first made to sections 1977 and 1978 of the federal Revised Statutes "which partially enumerate the rights and immunities intended to be guaranteed by the Constitution, the first of which declares that 'all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.' This act puts in the form of a statute what had been substantially ordained by the constitutional amendment. It was a step towards enforcing the constitutional provisions. Sect. 641 was an advanced step, fully warranted, we think, by the fifth section of the Fourteenth Amendment." As you can see, not only is equality to be "the basis of every law" but that everyone is to be "subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." Alimony and child support laws do not even remotely have have the same effect on women as they do on men, therefore they are not valid laws. Looking at the laws as a whole one hardly knows where to begin to address the wrongs in a society that sends seventeen men to prison for every women, but as you can see, I am trying.

In Castaneda v. Partida (1977) the Supreme Court is using the "new," extended meaning of the principle of equal protection to cover de facto discrimination; "Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut the case." From other decisions (as well as common sense) we know the same principle would apply if the defendant's group were overrepresented in a category with negative consequences. A study a while back showed that 93% of parents delinquent on child support were men; this is certainly substantial overrepresentation.

In Personnel Administrator v. Feeney (1979) where the underrepresentation issue revolves around gender, the Court explains; "'Discriminatory purpose,' however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least 'because of,' not merely 'in spite of,' its adverse effect upon an identifiable group."

There can be no doubt that the main driving force for the creation, expansion, and enforcement of child support legislation has come from women, and particularly, organized feminist groups. When enacted, the laws for support of women and children clearly targeted the male sex. Even today with the wording of laws being changed from "husband" and "father" to "spouse" and "parent" we still see government offices launching campaigns against "deadbeat dads." Changing the wording will not make the law just, the law was designed for a male role, to say that women will be similarly effected if they occupy a male role is about as just as offering both men and women alike free examinations for breast cancer. Because of this blatant discriminatory intent it doesn't seem possible that the government can justify its behavior.

A more fundamental part of the Constitution that is both relevant and ignored is Article I Section 10 that says "No State shall .. pass any .. Law impairing the obligation of contracts." A woman who has taken a vow to "love, honor, and obey" her husband "until death do us part" can violate every word of her marriage vows and still make a man pay alimony and child support. When a contract is mutually broken the contracting parties return to their original positions, to make one party continue to honor their contractual obligations while the other party is required to do nothing is a clear interference of "the obligation of contracts." Nor can the government prior, during, or after the fact place additional terms into a contractual relationship. To see how clearly the government is willing to enter into contracts on the behalf on women consider cases where men have executed pre-nuptial agreements in order achieve a more equitable relationship. When the pre-nuptial states that there will be no support if the marriage is terminated, the courts disallow such a provision as being "against public policy." As suggested before, "public policy" is increasingly just a matter of satisfying the interests of women - or women and children.

Some other principles relating to the formation of contracts are capacity and consent. The courts seem to overlook the fact that when marriage contracts first arose they were made between the parents of the couple, that is to say, by people experienced in marital affairs who were not under the influence of blind passion - or to quote George Bernard Shaw; "When two people are under the influence of the most violent, most insane, most delusive, and most transient of passions, they are required to swear that they will remain in that condition continuously until death do them part. "It will be further noticed that women are neither blinded by sex or love the way men are, and that in a patriarchal society reason more than emotion is the manner of social and political organization, hence you can see how this would relate to arranged marriages. The idea that some young gold-digger can seduce a rich old man with one foot in the grave and walk away with millions, or that a woman can statutorily rape a 12 year-old-boy and make him pay child support is obscene, yet, these things have happened. Many a man has been drawn in by sexual attraction, sunk deeper into love, and then given an ultimatum that if he doesn't marry his loved one that she will leave him. Since a broken heart is more painful than he can bear, he concedes, and this is said to be the basis of a consentual relationship.

As we have learned to expect, the protection of women as to consent is far different than that afforded to men . For example, in Friedlander v. Friedlander (1972) the Supreme Court of Washington declared a pre-nuptial agreement respecting separate property void because the agreement lacked "a full, frank, disclosure of the future husband's property and his worth" and the requirement that "the prospective spouse must sign the agreement freely and voluntarily on independent advice with full knowledge of her rights." The treatment of the sexes is as different as day and night, the man is allowed to stumble along blindly, the women is protected every step of the way, there is no equal protection of the laws, and if the courts are not forced into it they often do not even bother with the pretense of it.

It should be further observed that in a marriage or similar relationship the rewards are different for men than for women; in general, there is more of a material reward for the woman and more of an emotional reward for the man. Within the sphere of material rewards the duties of men tend towards public life as the provider, and for women as the homemaker with its array of domestic duties; cooking, cleaning, etc. as well as such intangibles as love, companionship, and sexual relations. If it had been acknowledged in the past that a woman had a right to support from her husband, it was also acknowledged that the husband was entitled to "wifely duties" consisting of the domestic and intimate matters mentioned above and going under legal expressions such as "consortium" and "society." An "alienation of affection" suit is a recognition of the loss of a man's rights in this regard. Although the number of these suits has greatly declined as part of the decline of the rights of men in general, still, you can see the same principle at work in a wrongful death suit where the injured party is compensated for the "loss of love" from the deceased. If a man cannot legally abandon his wife financially, then a woman should not be allowed to abandon her husband emotionally. How many women after being abandoned have committed suicide or drank themselves into oblivion the way men do? The overall suicide rate in this country is four times higher for men than it is for women; who do you think suffers more? If a woman breaks a man's heart causing him to drink excessively he often finds afoul of the "zero tolerance" drunk driving laws, an expression that very well describes the treatment of men in this society.

Someone might wish to point out that forcing women to fulfill their roles from a distance the way men are required to do would involve great difficulty. For an ex-wife to come over every day to cook and clean might well be impractical, particularly if she lived at a distance. As for the more personal side, will an ex-wife be required to have sex with a man she hates; will he even want her to walk in the front door? What would be feasible then, shall the ex-wife be required to pay another woman for such services, or perhaps pay the government to provide her ex-husband with such benefits. I suppose the idea of a "sexual welfare" program might sound rather amusing, but then politicians have no problem prostituting themselves for women. Actually, and looking back at the old west, there were places where men could go and receive a large range of benefits provided by the opposite sex. These places may be condemned as brothels today but in fact they were often much more than that, and were deliberating geared for men with no women in their lives - much like many men today. There is no practical reason why the government cannot fund such establishments today. As for the moral issue, the idea of such places even at their worst - as places solely for sex, received much of their odium as they were deemed inconsistent and a competition with married life. Yet today, sex outside marriage is quite acceptable, often, even among homosexuals.

The fact that there are complications does not justify ignoring the rights of men, if the government cannot provide equitable relief for both sides then it must step aside and allow people to work out their problems on a private basis. The government has been very creative in finding ways to satisfy women, if it made similar efforts towards men I doubt if it could not achieve similar results.

Before I conclude I must say a few words to anyone who finds himself disturbed over my promoting the abolishment of child support. First, children need to be supported, and in the best form of society, that is a patriarchy society (literally meaning "rule by fathers,") the father of the children are the providers and much more. From a moral standpoint we should strongly advocate such fatherhood, as well as lifetime respect and support in old age of parents by their children. As I pointed out before, there have been many ways to take care of needy women and children before alimony and child support were created. So too will they be taken care by their families and government programs when alimony and child support are done away with. What you see will happen when these things are done away with is that women will start treating their husbands better in order to keep them around, which is the last thing the feminists want.

The Men's Tribune


Written by Thomas Pollock aka Spartacus,  Editor of  The Men's Tribune                               First Posted: 1997