Equal Protection III – Sexual Equality

I.     Introduction. “Two sexes, one family order.” Equality under the law for women must take into account the law of God that distinguishes between males and females for the purpose of protecting the family unit, of the sexual relationships between males and females, and of the unique authority each gender has within the family.

A.     Gender vs. “race.” There is no analogy between gender and race merely because both are biological characteristics determined at birth.

1.     The nature of “race.” All people are descended from Adam and Eve, through Noah and his family. Accordingly, all people are of “one blood” and one race, that is, the human race. [Genesis 5:1-2.] [Acts 17:26.]

2.     Although there are differences in nationality (or ethnicity) among people, all humans are equally made in the image of God. [See Gen. 1:27.] The nature of “race” is such that no legal distinctions may be made between people on the basis of perceived race, that is, nationality or ethnicity.

3.     One race, two sexes. Sex based distinctions are not the same as distinctions based on “race” or nationality. God made one human race, but from the beginning He made that race into two sexes, male and female. [Genesis 1:27.]

B.     If gender were treated like “race.” If gender were legally treated like race, then no legal distinction could be made between people on the basis of sex or gender. This has never been the law in the United States, although Congress proposed in 1972 that it should be. The proposed Equal Rights Amendment provided that: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

1.     Impact on the family. If the E.R.A. had been ratified, the separate authorities of males and females in the family structure would no longer be protectable under law, resulting in the legal deconstruction of the family unit.

2.     Public restrooms, etc. We do not have separate restrooms for people based on race, because to do so would require a race-based legal distinction. If gender were to be treated the same as race for purposes of the law, how could separate facilities be lawful? The existence of separate facilities assumes sex is not like race.

II.     Familial capacity. God’s division of man into male and female was the foundation of the earliest human governing institution, the family. From the beginning God ordained that the two sexes have distinct authorities within the family unit.

A.     The legal difference between males and females is one of authority.

1.     Woman was created for the sake of man, not the reverse. [Genesis 2:18.] [1 Corinthians 11:9.]

2.     By taking her husband’s name, a woman shows that she is submitting to his authority over her.

a.     The first man (Adam) named all of the animals. [Genesis 2:19-20.]

b.     The act of naming something denotes authority over the thing named. Adam could name the animals because he had authority over them. [Genesis 1:28.]

c.     Adam demonstrated his authority over his wife by naming her twice; first in a general sense (“woman”) [Genesis 2:23], and then in a specific sense (“Eve”) [Genesis 3:20].

d.     When a woman refuses to take her husband’s name, what does it mean except that she refuses to acknowledge his authority over her?

3.     The husband is the “head” of his wife, a term denoting authority. [1 Corinthians 11:3.] See also Eph 5:22-24 and 1 Pet 3:1-7.

a.     Thus, under the Mosaic law, a husband could veto his wife’s vows and agreements. [Numbers 30:6-15.]

b.     This order of headship within the family was not simply a matter of custom or tradition, but was rooted in the nature of the creation itself, hence, is part of the immutable law of nature applicable to all people. [1 Cor. 11:8-10.]

c.     Note also that headship in the family did not originate as a result of sin (after the Fall), but was part of God’s plan from the beginning. The effect of the Fall was, in effect, the opposite, that is, the woman would desire to rule over her husband, nonetheless, this desire would be frustrated. [Genesis 3:16.]

4.     Whereas the original plan was for the man to be the head of a woman, and the man and woman together to rule over the animals, the circumstances of the Fall attempted to reverse this order of authority. Thus, it was the serpent who deceived the woman to violate the law, then the man was deceived by the woman, and then the woman desired to rule over the man. [Genesis 3:1,6,8.] And so the struggle between two opinions continues to this day.

B.     The male leads the female in family formation.

1.     God ordained that the male initiate with the female the formation of the family unit. [Genesis 2:24.]

2.     This was the pattern followed by the patriarchs. [Genesis 24.]

3.     Even a divorce under the Mosaic law was to be initiated by the husband, not the wife. [Deut. 24:1-4.]

C.     The male retained leadership within the family and assumed primary responsibility to provide for and to defend the family.

1.     Husband’s duty to defend and protect the family. [Numbers 1:2-3.]

2.     Husband’s duty to provide for the family. [1 Tim. 5:8.]

3.     However, females can be family producers. [Prov 31:10-31.]

D.     The law of Inheritance. Biblical law of inheritance: inheritance generally passes from father to sons, not from mothers or to daughters.

1.     The genealogies.

a.     From father to son.

b.     Nationality and ethnicity trace from the father alone.

c.     Covenantal descendants are determined by the male line alone.

2.     The “sons of Israel.”

a.     The original (lonang) definition of the nation of Israel was determined by male heirship, i.e., it was the father who must be Jewish, not the mother. [Numb. 1:2-4.]

3.     A limited exception when there are no sons, as to property. The daughters of Zelophahad. [Num 27:7-8.]

4.     The Davidic covenant.

a.     The throne was to fall to David’s “descendants.” Assumed: male heirs only. [2 Sam. 7:12-16.]

b.     The case of Athaliah. A woman. A usurper and unauthorized claimant. [2 Kings 11:1-16.]

III.     Traditional sex distinctions. Sexual distinctions outside the immediate family relationship are permissible to the extent based upon the family institution.

A.     Gender equality in the Church.

1.     There is neither male nor female in Christ. Gal. 3:28. Did not undo the law of nature. Did not undo the family order. Did not eliminate sexual (gender) distinctions altogether. It just means that redemption is available to males and females equally.

2.     The importance of inheritance in Christianity.

a.     The legacy (inheritance) of Adam. Through one man sin entered the world for all men. Rom 5:12-14. That is, original sin (fallen nature) is inherited from one’s father.

b.     The virgin birth of Jesus. What are the legal implications for him who has no earthly father?

c.     The adopted sons of God. Gal. 3:26, 4:1-7. Are there no daughters of God? Who inherits – sons or daughters?

3.     Church participation. Women need a covering while praying or prophesying, 1 Cor. 11:1-7 (based on creation order and purpose). Women are not to exercise authority over, or teach, men, 1 Tim 2:11-15; 1 Cor 14:34-35 (based on order of creation and transgression). Women are not eligible to be pastors or elders in the church, 1 Tim. 3:1-5 (based on management of household). A cultural reference, or the law of nature?

B.     Laws preserving the family. Legal distinctions that preserve the different authorities for male and female within the family unit are legitimate.

1.     Regulation of marriage. The law of marriage is built upon the union of one male and one female. Matthew 19:4-6. The sexual union of two males or two females or of one female and many males cannot constitute a family. Can one male and multiple females constitute a valid family? Why or why not?

2.     Sex Crimes. A preservation of sexual relations within the confines of marriage.

3.     Rape. Laws are valid which protect females from being raped by males, but not vice versa. Michael M. v. Superior Court, 101 S.Ct. 1200 (1981). See, Deuteronomy 22:25-29.

C.     Gender equality in civil society. A presumption of sexual equality in a person’s individual capacity.

1.     The generic “man” is a term of authority which applies to both males and females. Gen 1:26-28; 5:2. Terminology, i.e., “mailman,” “chairman,” etc. reflect this generic use of “man.” So-called non-sexist language (i.e., “chairperson”) defeats the authority of the person using the title, rather than enhancing it.

2.     Equality of sexes under the law. Except for the law of rape, in all other criminal cases, males and females are to be treated equally. Num 5:5-8. General presumption of equality with respect to civil government conduct.

3.     Armed services. Laws are valid which prohibit the drafting of women into the armed forces for combat duty. Rotsker v. Goldberg, 101 S.Ct. 2646 (1981). Who has the duty to protect families – men or women? Even Deborah when she judged Israel did not exercise the authority of that office to lead the army into war contrary to the practices of every judge who occupied the office before her and every one who came after. See, Judges 4:4-9, 21-22. What are the implications for national defense, and militia vs. standing army? See, Num 1:2-4; also Deut. 20:7,13-14.

4.     Voting franchise. Women did not gain the right to vote in all elections in the United States until 1920. Consider: voting is a civil, not unalienable right. Can a nation choose to have “one household – one vote” instead of “one person – one vote”? See, U.S. Const. Art. I, § 2, Cl. 3.

5.     Public office holding. Although Israel’s leaders were almost exclusively male, it was not because women were legally ineligible to hold political office, i.e., Deborah, Judges 4.

Other examples: Deborah, Prophetesses, Phoebe.

IV.     Modern Rules of Gender Equality. S.Ct.: “Two sexes, no family order.”

A.     Sexual (Gender) equality.

1.     Gender Classifications.

a.     Intentional discrimination against women is invalid. Classifications benefitting women that are designed to remedy past discrimination are valid.

b.     Intentional discrimination against men is generally invalid. However, certain laws have been found to be substantially related to an important government interest (e.g., statutory rape laws, all male draft).

2.     Reed v. Reed. S.Ct strikes down state law which favors males over females in selecting between equally entitled administrators of intestate estate.

a.     Majority: Statute makes an “arbitrary legislative choice.”

b.     What social institution has jurisdiction over property & inheritance, generally?

c.     Doesn’t the state law help preserve the family order dictated by God?

3.     Frontiero v. Richardson. Court invalidates Congressional presumption that wives are dependents of their husbands, but not the reverse.

a.     What is the family order dictated by law of nature?

b.     Law of nature’s God expressly rejected.

c.     Brennan: Sex is like race – characteristics determined at birth.

d.     Brennan: Sex characteristic bears no relationship to ability. [But, is ability the issue with respect to the familial order? Competency => legal, not factual, standing.]

4.     Craig v. Boren. Court strikes down state law discriminating between males and females relating to alcoholic beverage age of majority.

a.     Decision based on “the increasingly outdated misconceptions concerning the role of females.”

b.     The law changes with the facts and public opinion, apparently.