Women missing from Egypt’s new constitution -- and our old one

The draft constitution that will be put before Egypt’s voters is being criticized for its lack of any language explicitly guaranteeing equal rights for women. But in that regard it resembles the constitution of a country that prides itself on affording women equal rights – the United States. And a previous constitution that did grant equal status to men and women was hedged with qualifications that feminists would find objectionable.

The now-suspended 1971 constitution did recognize women’s “equal status with men in the fields of political, social, cultural and economic life” -- but subject to “the rules of Islamic jurisprudence.” The same article committed the state to guaranteeing “the proper balance between the duties of women towards the family and their work in society.” Not exactly a feminist formulation.

The new draft constitution prepared by an Islamist-dominated assembly doesn’t explicitly guarantee women’s equality, but it does state that “citizens are equal before the law and equal in rights and obligations without discrimination.” Does that general commitment to equality represent a regression from the 1971 document? Perhaps, but it also resembles language in the U.S. Constitution under which women have won a series of legal victories.

The language in question is the equal protection clause of the 14^th Amendment, which says that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Although the federal government is not covered by the 14^th Amendment, courts have discovered an “equal protection” component in the 5^th Amendment’s guarantee of due process of law. That’s the basis on which four U.S. servicewomen are challenging the constitutionality of the exclusion of women from combat.

So, at least in the American context, equality for women doesn’t require an explicit constitutional guarantee of sexual equality? Yes and no. Under current Supreme Court doctrine, laws disfavoring women have been struck down on equal protection grounds. But it is harder to challenge such laws than to contest laws that involve racial classifications. In examining racial classifications, courts engage in “strict scrutiny,” which almost always leads to the law being invalidated. In sex-discrimination cases, courts employ the lesser standard of “heightened” or “intermediate” scrutiny.

That’s one reason some American feminists continue to press for adoption of the Equal Rights Amendment to the Constitution, which was approved by Congress in 1972 but fell three states short of ratification. (Four states eventually rescinded their ratifications.). The ERA says: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” That’s a clearer articulation of sexual equality than is contained in either the U.S. or the Egyptian constitutions.

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