Leah Litman // 4/3/17 //
The Washington Post’s recent profile of Karen Pence (Vice President Mike Pence’s wife) included a revealing snippet from a 2002 interview with Mike Pence. In that interview, Pence reportedly said “that he never eats alone with a woman other than his wife and that he won’t attend events featuring alcohol without her by his side, either.”
Pence’s statement has rightfully drawn a fair amount of attention. I wanted to focus here on an aspect of the statement that has received less attention—whether the policy reflected in that statement would be unlawful and what it says about the administration’s approach toward anti-discrimination law.
At the time of the interview, Pence was serving in Congress as a member of the House of Representatives. Taken at its face, Pence’s statement (literally, seriously, or some combination of the two) reveals that he would not eat alone with a woman in his official capacity as a Representative. He would not have breakfast with a female staffer who had worked on a bill that Congress was debating or considering. He would not have coffee with a female staffer who wanted some career advice. He would not have dinner with any of his female colleagues on the House to court their support (or consider their requests to support) for a bill. He would not have a bite to eat with a female reporter who was working on a story. He would not have a meal with a woman who was interviewing for a position in his office.
But he would do all of those things so long as the person sitting across the table from him was a man. That is the prototypical example of discrimination on the basis of sex—doing one thing for men, but something else for women. And there’s a reason why that’s considered discrimination on the basis of sex—the Pence policy would do real harm to women. It would keep women out of job interviews, networking opportunities, career advice, material job benefits, opportunities for career advancement, and any other number of things. The reality is that men still hold more leadership positions than women do, and cutting off women’s access to those positions and the people in them will only further perpetuate those disparities.
Maybe Pence would have all of these meetings with women so long as there was no “eating” at the meeting. But why? Why would he meet alone with a woman if he couldn’t eat alone with her? There is no additional risk of impropriety, or appearance of impropriety, if a one-on-one meeting takes place with a burger on the table.
It’s not entirely clear what the rationale behind Pence’s policy is—that’s not really spelled out in the Post profile (although I’ll discuss the rationale a bit more in another post). I’ll assume, for now, that the policy is driven by the Pences’ religious beliefs, and specifically some set of beliefs about the sanctity of marriage, the risk of sin, and the proper relationship between men and women. At the risk of oversimplifying, Pence’s policy of not eating alone with woman appears to be designed to preserve the sanctity of his marriage and to avoid situations that might look compromising to his marriage or situations that might actually compromise his marriage. And we can assume the Pences’ views on these points are entirely held in good faith
But that doesn’t make his policy any less of a classification that is on the basis of sex—the policy provides men something (the opportunity for an over-a-meal meeting with an officer of the federal government) that is denied to women. That means the policy would be lawful only if it serves an “exceedingly persuasive justification” and “the discriminatory means employed are substantially related to the achievement of those objectives.”
Preserving the sanctity of marriage could be an exceedingly persuasive justification. But there is just no way that the Pence policy, which excludes all women, is “substantially related” to achieving that objective. United States v. Virginia held that the Virginia Military Institute’s policy of denying admission to all women was unconstitutional discrimination on the basis of sex. Virginia rejected the Virginia Military Institute’s argument that its policy of denying admission to all women was “substantially related” to the VMI’s programmatic requirements of physical training, limited privacy, and the “adversative” approach to instruction—VMI’s demanding, combative method of instructing students. VMI’s denial of admission to all women was not “substantially related” to VMI’s programmatic requirements, according to Virginia, because even if most women would not select into VMI’s demanding “adversative” method, some women would, and some women had “the will and capacity” to succeed at it.
Applying that logic to the Pence policy, I think it’s safe to say that meeting with some women would not pose any risk to the appearance or integrity of the Pences’ marriage. A woman who is attracted to other women would probably not enter into an extramarital affair with Mike Pence, or Pence with her. We can also assume that meeting with a 12- or 14- or 16- year old prospective intern also wouldn’t be a problem. Nor would meeting with the hundreds, thousands, and millions of women who would never, ever cross a line with Pence (or with whom Pence would not cross a line). And how about Caitlyn Jenner? Would meeting with her (or Laverne Cox) pose a risk to Pence’s marriage too? Or if (as I wonder) he would define Caitlyn and Laverne Cox as “not women,” would he also not have lunch with Gavin Grimm (who Pence might define as a “woman”)?
The Pence policy underscores a more general point about this administration’s approach to anti-discrimination policy. One of the rallying cries against the (obviously constitutional) Affordable Care Act was that the ACA, by requiring employers to provide insurance coverage for contraception, violated employers’ religious freedom. The leaked “religious liberty” executive order that this administration is reportedly considering also attempts to use religion as a justification for discrimination—against women, in the area of health care, and against gays, lesbians, and bisexuals in family and health services. The Pence policy is of a piece with those policies, and it illustrates their sweeping implications—if you have a right to withhold health coverage from women because of your religious beliefs, why don’t you also have a right not to hire them as employees? Why don’t you have a right not to meet with them at all? Pence and the state agencies that are subject to the executive order are state actors, of course. But federal law prohibits discrimination by private entities, just as the Constitution prohibits discrimination by public ones.
Or consider the Pence policy from another angle. What if other representatives refused to meet (or meet and eat) alone with women? Take a representative from my home state (perhaps the greatest state) of Minnesota—Keith Ellison. Keith Ellison is Muslim. Would all of Pence’s defenders be a-okay if Ellison announced tomorrow that, due to his religion, he would no longer meet alone with women, or in groups that include only women? I’d like to think Pence’s defenders would be fine with that policy. But now imagine if every single male representative and Senator refused to do the same.
Those are just some of the forward-looking problems with the Pence policy. But there is also a major backward-looking one as well. Religious beliefs are currently seen (to some) as a socially and legally acceptable basis for discriminating against women, or discriminating against gays, lesbians, bisexuals, and transgender individuals. But it was not so long ago that religious beliefs were viewed, by some, as a socially and legally acceptable basis for discriminating on the basis of race. In Loving v. Virginia, the state of Virginia relied on religion to justify its prohibition on interracial marriages (more specifically, its prohibition on marriages between African Americans and Caucasians). Upholding the Lovings’ convictions for marrying the person they loved, the Virginia trial court wrote:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
The Indiana courts (Pence’s home state) reasoned similarly (in a decision cited by Virginia in its brief to the Supreme Court):
“The question is one of difference, not of superiority or inferiority. Why the Creator made one black and the other white, we do not know, but the fact is apparent, and the races are distinct, each producing its own kind, and following the peculiar law of its constitution. Conceding equality, with natures as perfect, and rights as sacred, yet God has made them dissimilar, with those natural instincts and feelings which He always imparts to His creatures, when He intends that they shall not overstep the natural boundaries He has assigned to them. The natural law which forbids their intermarriage and that social amalgamation which leads to a corruption of races, is as clearly divine as that which imparted to them different natures …. But to assert separateness is not to declare inferiority in either; it is not to declare one a slave and the other a freeman; that would be to draw the illogical sequence of inferiority from difference only. It is simply to say, that, following the order of Divine Providence, human authority ought not to compel these widely separate races to intermix.”
Georgia courts were also quick to pile on too (in another decision cited in Virginia’s brief to the Supreme Court):
“Such equality does not in fact exist, and never can. The God of nature made it otherwise, and no human law can produce it, and no human tribunal can enforce it.”
And let’s not forget Bob Jones University v. United States, a 1983 Supreme Court case, in which an entity argued it had a religious right to discriminate on the basis of race. At the time, Bob Jones University had a policy that prohibited interracial dating, interracial marriage, or affiliating with any group that held as one of its goals or advocates interracial marriage. The Internal Revenue Service revoked Bob Jones University’s tax-exempt status because Bob Jones University was discriminating on the basis of race. Bob Jones University then argued that the IRS regulations could not “constitutionally be applied to schools that engage in racial discrimination on the basis of sincerely held religious beliefs.” If a member of the Bob Jones University administration was now part of the Trump administration, could he refuse to hire, meet, or work with people who are in interracial marriages? If not, why can Pence refuse to meet with women?
Discrimination isn’t any less illegal when it’s done in the name of a God.