PERSPECTIVE ON THE LAW : A ‘Back to the Kitchen’ Nominee? : We must know if Clarence Thomas’ reading of ‘natural law’ means erasing gains against sex discrimination.

Since 1971, the Supreme Court has held that the equal protection clause of the 14th Amendment to the Constitution prevents the government from treating men and women differently because of their sex, unless it has a reason that is “substantially related” to an “important governmental objective.” The court has also made clear that stereotypical views of gender roles won’t pass muster. This legal test, known as “heightened scrutiny,” has been used often in the last two decades to overturn laws that discriminate by sex.

With Justice Thurgood Marshall’s retirement, however, only four of the remaining justices have applied the heightened scrutiny standard to policies that discriminate by gender. Thus, Clarence Thomas could well become the fifth vote in a majority willing to roll back women’s rights. There is no more important inquiry than to ascertain where he stands on this critical legal principle.

Thomas’s writings on “natural law” already give cause for grave concern about his commitment to the protection of women under the 14th Amendment.

Thomas has said that the Constitution should be interpreted by examining the Declaration of Independence to discern the original intent of the framers. This theory sets him far outside the mainstream of legal thinking in two ways that do not bode well for women:

-- Despite two centuries of social change, Thomas’ reliance on original intent freezes the meaning of the Constitution and its amendments at the time of their drafting. Since neither the framers of the Constitution nor the drafters of the 14th Amendment were concerned with sex discrimination, a theory based on original intent could well read women out of the equal-protection clause.

-- Even more troubling, Thomas’s view that original intent flows from the Declaration of Independence grounds his constitutional theory in the “laws of nature and nature’s God.”

To him, these “laws” set forth immutable principles that existed long before the drafting of the Constitution and will remain ever thus. Under such “laws of nature,” women’s biological differences, rather than their abilities, could become the test for determining the scope of their constitutional protection.

These natural-law principles found their most consistent application in 14th-Amendment decisions that upheld blatant sex discrimination before 1971.

Consider Myra Bradwell’s application for a license to practice law. In a famous 1873 case, the court ruled against Bradwell, with three concurring justices saying that the “civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.” With these words, Myra Bradwell, president of the Chicago Legal News and head of a publishing company, was relegated to the “domestic sphere,” away from the sordid business of law.

Seventy-five years later, in 1948, the court accepted the state of Michigan’s reasoning that the presence of women bartenders may “give rise to moral and social problems.” It upheld a law limiting women bartenders to the daughters or wives of male bar owners who could provide “protecting oversight.”

As recently as 1961, the Supreme Court upheld a Florida statute excluding women from juries unless they requested in person to serve on a panel. The state of Florida argued in its brief that even the “advent of ‘TV’ dinners” does not change the principle that “ever since the dawn of time” women have had primary responsibility for child-rearing and men have assumed the role of breadwinner. The court concluded that “woman is still regarded as the center of home and family life,” and upheld the restrictive statute.

The jury discrimination case was reversed in 1975, and it is hard to imagine returning to a world when women could be legally deterred from serving on juries because a state legislature thought they should be home heating up TV dinners. But it is entirely possible that the Supreme Court may soon undergo a major swing in that direction.

None of Thomas’s writings on the Constitution address whether he reads the 14th Amendment to include protection against sex discrimination. The logical conclusion of his theory of constitutional interpretation, however, is that women are not entitled to the protection they have received for the last 20 years.

If Thomas is to be confirmed, the Senate must assure itself of his commitment to bedrock constitutional protections for women--or explain to American women the unexplainable: why it would allow the “laws of nature” to write them out of the Constitution.