Protective Labor Legislation
Protective labor legislation refers to numerous state laws which restricted
the number of hours women could work, the amount of weight they could
lift, occasionally provided for special privileges such as rest periods
and often excluded them entirely from night work or certain occupations.
The first effective law, enacted in Massachusetts in 1874, limited the
employment of women and children to 10 hours a day. By 1900, 14 states
had such laws and by the mid-sixties every state had some form of protective
There were two forces behind the drive for this legislation. One was organized
labor, which saw women workers as competitors. Their policy was explicitly
stated by President Strasser of the International Cigar Makers Union in
1879: "We cannot drive the females out of the trade, but we can restrict
this daily quota of labor through factory laws."13
The other was social reformers who found the Supreme Court unreceptive
to protective laws which applied to both sexes.
In 1905 The Supreme Court declared unconstitutional a New York law which
prohibited bakers from working longer than ten hours a day or sixty hours
a week. In Lochner v. New York the Court said that "the limitation
necessarily interferes with the right of contract between the employer
and employee ... [which] is part of the liberty of the individual protected
by the Fourteenth Amendment".14
Three years later it upheld an Oregon law which restricted the employment
of women in factories, laundries or other "mechanical establishments"
to ten hours a day on the ground that women's physical structure and a
proper discharge of her maternal functions -- having in view not merely
her own health but the well-being of the race -- justify legislation to
protect her....The limitations which this statute places upon her contractual
powers..are not imposed solely for her benefit, but also largely for the
benefit of all....The reason...rests in the inherent difference between
the two sexes, and in the different functions in life which they perform.15
With this precedent, the drive for protective legislation became distorted
into a push for laws that applied to women only on the principle that
half a loaf was better than none. Reformers eventually persuaded the Supreme
Court that maximum hours and other forms of protective labor legislation
were valid health measures for men as well as women,16
but the opposition of organized labor to protective legislation for men
focused their efforts on securing it for women. The 1938 Fair Labor Standards
Act eventually provided federal protection for both sexes, but by then
sex specific laws governing the conditions under which women could work
had gained a momentum of their own. The effect of these laws on women
was controversial when they were passed and continued so long after they
were in place. Those who supported them, particularly the Women's Bureau
of the Department of Labor, claimed they effectively reduced the economic
exploitation of women. Those who opposed them, including the National
Woman's Party and the National Federation of Business and Professional
Women, argued that they mostly protected men from female competition.
These laws kept women out of jobs requiring night work and from promotions
into positions requiring overtime or lifting more than the proscribed
weights. During War World II protective labor laws were suspended to allow
women to work in war industries, and reimposed after the war when women
were forced to leave.17
Civil and Political Rights
It is a common myth that when the 19th Amendment extended suffrage to
women on the same basis as men in 1920, all other civil and political
rights automatically followed. In reality, few followed easily. Most required
continual struggle. In the first few years after Suffrage there were even
attempts to keep women from running for public office on the grounds that
the right to vote didn't bring with it the right to be voted on.
One of the first uses to which women put their new right to vote was to
change federal law to give women equal rights to citizenship with men.
Although the English common law allowed married women to retain their
citizenship when they married foreign nationals, in the Nineteenth Century
both Britain and the United States adopted the idea that a married woman's
nationality should be that of her husband. In 1907 the U.S. made this
principle automatic regardless of where the couple lived or the intentions
of the husband to become a U.S. citizen. The first decade of the Twentieth
Century was a period of heavy immigration and the consequences of this
law to native born American women who married immigrants were quite onerous.
Many states prohibited aliens from inheriting or buying real property,
or closed them out of some professions (e.g. law, medicine, teaching).
During World War I, many American women married to foreign nationals found
themselves classified as enemy aliens and their property confiscated.
Feminists achieved one of their first legislative successes in 1922 when
Congress passed the Cable Act separating a married woman's citizenship
from that of her husband. However, it did not create equal citizenship
rights, or completely rectify major injustices. For example, in 1928,
Ruth Bryan Owen's election to Congress was challenged by her opponent
on the grounds that she had not met the constitutional requirement of
seven years of citizenship. Owen, daughter of frequent Democratic Presidential
candidate William Jennings Bryan, had lost her citizenship in 1910 when
she married a British army officer. The 1922 act did not automatically
restore her citizenship, but only gave her the right to be renaturalized.
The requirements were so burdensome that she was not renaturalized until
1925. This injustice, and continual lobbying by women's organizations,
prompted several revisions in the law until citizenship rights were finally
equalized in the thirties.18
The longest battle was over jury service, which feminists felt was an
important indicia of citizenship, even though potential jurors are often
less than enthusiastic over being called to serve. Traditionally under
the common law, juries were composed only of men, except in certain situations
involving a pregnant woman. In this country the First Judiciary Act of
1789 mandated that federal jurors should have the same qualifications
as those of the state in which the federal court was sitting, and no state
permitted women to sit as jurors until Utah did so in 1898. In 1880, the
Supreme Court found that the exclusion of blacks from jury service was
unconstitutional, but noted that this was not true of women.19
Only twelve states conferred jury duty with enfranchisement. In the rest,
many decades of trench warfare in the legislatures were necessary just
to achieve the right to be in the jury pool; equal obligation to serve
was the exception. By 1965 Alabama, Mississippi and South Carolina still
completely excluded women and in only twenty-one states were women eligible
on the same basis as men. In eighteen states and the District of Columbia,
women were exempted based solely on their sex, in eight states, the exemption
was limited to women with family responsibilities. It was not until the
Civil Rights Act of 1957 that all citizens were deemed qualified to sit
on federal juries, regardless of state law, and even this law was not
implemented until the Federal Jury Selection and Service Act of 1968 specifically
prohibited exclusion on the basis of race, color, religion, sex, national
origin, or economic states.20
Women have often found employment opportunities in the state and federal
civil service that they did not find in the private sector, but they have
also found these opportunities limited by the law and by official rulings.
In 1919, all federal civil-service examinations were finally opened to
women, but each department head could specify the sex of those he wished
to hire for any position. This was not changed until 1962. Ironically,
the right to specify sex was not opposed by most women in government.
Civil service rules gave veterans preference over nonveterans, and since
few women were veterans, many were concerned that they would not be hired
for even the lowest-level clerical jobs if sex could not be specified.
However, they were all opposed to laws and administrative rulings that
prohibited both spouses from holding government jobs; even when the rulings
did not explicitly state that the wife would be the spouse to lose her
job, that was the practice. The first attempt to remove married women
from the federal civil service was made in 1921. This effort failed, but
a similar one was finally successful in 1932. Since federal employees
included school teachers in the District of Columbia and military draftees,
a teacher married to an Army private could find herself dependent solely
on his income. Many other states followed suit during the Depression,
in the belief that hard times required that jobs be distributed as widely
as possible. One job per family was the demand; removal of women was the
outcome. Teachers were the hardest hit; by 1931 most school systems would
not hire married women and would not retain women when they married. Although
the federal law was repealed in 1937 and pressure on married women eased
with World War II when these women were needed in the labor force, state
laws limiting their employment in government positions still existed as
late as the fifties. 21
SEX AND THE SUPREME COURT
For many decades the courts made it clear that the traditional concern
of public policy with women's family role went far beyond her legal rights
and obligations within the marital relationship. Indeed her family role
formed the basis of her legal existence. The earliest case challenging
a discriminatory law to reach the Supreme Court was instigated by Myra
Bradwell, who objected to Illinois' refusal to admit women to the practice
of law. She, and other women, looked upon the newly ratified Fourteenth
Amendment as an opportunity to remove some onerous legal barriers. In
1873 the Supreme Court rejected her argument that admission to the bar
was a privilege and immunity of citizenship which could not be abridged
by the states. Most telling was a concurring opinion by three justices
which explained that:
The natural and proper timidity and delicacy which belongs to the female
sex evidently unfits it for many of the occupations of civil life. The
constitution of the family organization, which is founded in the divine
ordinance, as well as in the nature of things, indicates the domestic
sphere as that which properly belongs to the domain and functions of
womanhood. The harmony, not to say identity, of interests and views,
which belong, or should belong, to the family institution is repugnant
to the idea of a woman adopting a distinct and independent career from
that of her husband....
This rationale continued for almost a century. As late as 1961 Court decisions
reflected a refusal to see women as individual people in preference to
their identity as members of a class with a specific social role. That
year a unanimous Court rejected a request by a Florida woman to overturn
her conviction by an all male jury for murdering her husband with a baseball
bat during a "marital upheaval". Florida did not completely
exclude women from jury service but it was one of seventeen states which
exempted women solely on the basis of their sex. This exemption took the
form of assuming women did not wish to serve unless they registered a
desire to do so with the court clerk; an assumption not made for men.
Consequently, when Gwendolyn Hoyt's trial took place in 1957 only 220
women out of 46,000 eligible registered female voters had volunteered,
and only ten of these were among the 10,000 people on the jury list constructed
by the court clerk. The Court rejected her argument that "women jurors
would have been more understanding or compassionate than men in assessing
the quality of [her] act and her defense of 'temporary insanity'."
Instead it ruled that
It is true that many women are unmarried and not affected by any of the
duties, complications, and incapacities arising out of the married state,
but these are exceptions to the general rule. The paramount destiny and
mission of woman are to fulfill the noble and benign offices of wife and
mother. This is the law of the Creator, and the rules of civil society
must be adapted to the general constitution of things, and cannot be based
upon exceptional cases.22
...the right to an impartially selected jury ... does not entitle one
... to a jury tailored to the circumstances of the particular case,...
It requires only that the jury be indiscriminately drawn from among
those eligible in the community for jury service, untrammeled by any
arbitrary and systematic exclusions....
...Despite the enlightened emancipation of women from the restrictions
and protections of bygone years, and their entry into many parts of
community life formerly considered to be reserved to men, woman is still
regarded as the center of home and family life. We cannot say that it
is constitutionally impermissible for a State, acting in pursuit of
the general welfare, to conclude that a woman should be relieved from
the civic duty of jury service unless she herself determines that such
service is consistent with her own special responsibilities....
This case in no way resembles those involving race or color in which the
circumstances shown were found by this Court to compel a conclusion of
purposeful discriminatory exclusions from jury service. (cites omitted)
There is present here neither the unfortunate atmosphere of ethnic or
racial prejudices which underlay the situations depicted in those cases,
nor the long course of discriminatory administrative practice which the
statistical showing in each of them evinced.23
The Fourteenth Amendment
To understand the logic of the Court and to appreciate the significant
change in orientation that the Supreme Court began in 1971 one has to
understand the structure of legal analysis that has developed around the
Fourteenth Amendment. The most far-reaching of the Civil War Amendments,
the simple language of Section I imposed restrictions on State action
that had previously only been imposed on the Federal government by the
Fifth Amendment. These were that
No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection
of the laws.
Supreme Court ruled very early that the "privileges and immunities"
clause did not convey any rights that had not previously existed, and
thus shut that avenue of legal development. When Virginia minor demanded
suffrage as a right of citizenship, the Court said that since voting was
not a privilege or immunity of national citizenship before the Fourteenth
Amendment, it did not become one afterwards.24
The due process clause was for many decades used to undermine state economic
regulations such as those found unconstitutional in Lochner and
Adkins as well as most of the New Deal legislation prior to 1937.
This doctrine was called "substantive due process". Consequently,
the quest for equality focused on the "equal protection" clause.
Until 1971 this quest was a futile one for women. Initially the courts
ruled that race and only race was in the minds of the legislators when
the Fourteenth Amendment was passed. "We doubt very much whether
any action of a state not directed by way of discrimination against negroes
as a class or on account of their race will ever be held to come within
the purview of this provision."25
The prohibition on racial discrimination was soon expanded to include
Fundamental rights, such as voting, travel, procreation, criminal appeals
or those protected by the First Amendment were eventually brought under
the protective umbrella of the Fourteenth Amendment as well. 28
This umbrella did not protect everyone or every right. Instead, in the
post New Deal era, two tiers of equal protection analysis emerged.29
Not all legal discrimination was prohibited, only invidious
discrimination. If a compelling state interest can be shown, distinct
laws or state practices -- such as those necessary to integrate school
districts -- based on race or nationality are permitted. The essence of
this approach is that certain classifications are "suspect"
and thus subject to "strict scrutiny" by the courts. Unless
there is a "compelling state interest" they will be struck down.
Classifications which are not suspect are not subject to the same searching
inquiry. The state need only show that there is a rational basis
for their existence and the court will defer to the legislature.
In practice, classifications which are subject to strict scrutiny are
almost always invalidated as unconstitutional. Classifications for which
only a rational basis need be shown have almost always survived. The courts
have shown great deference to the state legislatures and have gone out
of their way to construct rationalizations for legal distinctions which
to the untrained eye might seem to have only the flimsiest of reasons.
For example, in 1948 the Court upheld a Michigan law which prohibited
women from working in bars unless they were the wives or daughters of
a male owner. Six justices felt this was an easy case to decide.
The fact that women may now have achieved the virtues that men have
long claimed as their prerogatives and now indulge in vices that men
have long practiced does not preclude the States from drawing a sharp
line between the sexes, certainly in such matters as the regulation
of the liquor traffic....
While Michigan may deny to all women opportunities for bartending, Michigan
cannot play favorites among women without rhyme or reason.... Since
bartending by women may, in the allowable legislative judgment, give
rise to moral and social problems against which it may devise preventive
measures, the legislature need not go to the full length of prohibition
if it believes that as to a defined group of females other factors are
operating which either eliminate or reduce the moral and social problems
otherwise calling for prohibition. Michigan evidently believes that
the oversight assured through ownership of a bar by a barmaid's husband
or father minimizes hazards that may confront a barmaid without such
protecting oversight.... We cannot cross-examine either actually or
argumentatively the mind of Michigan legislators nor question their
motives. Since the line they have drawn is not without a basis in reason,
we cannot give ear to the suggestion that the real impulse behind this
legislation was an unchivalrous desire of male bartenders to try to
monopolize the calling. 30
development of the two-tier system of jurisprudence meant that the outcome
was determined by the level of analysis chosen rather than the reason
for the classification. The "strict scrutiny" test was usually
fatal, while the "rational basis" test was usually meaningless.
Thus, in order to eliminate a legal classification, one has to convince
the courts that it should be subject to strict scrutiny.
The Turning Point: Reed and Frontiero
It was not until 1971 that the Court demonstrated displeasure at
a State's "drawing a sharp line between the sexes"31
when it unanimously held unconstitutional an Idaho statute giving preference
to males in the appointment of administrators of estates. In Reed v.
Reed the Court found the "administrative convenience" explanation
of the preference for males to have no rational basis.32
Although unexpected, this development was not unforeseeable. During the
previous few years the Court had been adding a bit of bite to the rational
basis test by looking more closely at State rationalizations as they applied
to some statuses or some interests which did not trigger
In the previous two years the emerging women's movement had become publicly
prominent, and the Equal Rights Amendment had been battling its way through
the Court's assertion that "the Constitution does not require legislatures
to reflect sociological insight, or shifting social standards"35
the Court itself often does just that. A still stronger position was taken
17 months later, when Air Force Lieutenant Sharon Frontiero challenged
a statute that provided dependency allowances for males in the uniformed
services without proof of actual economic dependency, but permitted them
for females only if they could show they paid one-half of their husband's
living costs. Eight members of the Court found the statute unconstitutional
but they split as to the reason. Four applied strict scrutiny, using language
very different from that of previous cases.
There can be no doubt that our Nation has had a long and unfortunate
history of sex discrimination. Traditionally, such discrimination was
rationalized by an attitude of "romantic paternalism" which,
in practical effect, put women not on a pedestal, but in a cage.
.... Moreover, since sex, like race and national origin, is an immutable
characteristic determined solely by the accident of birth, the imposition
of special disabilities upon the members of a particular sex because
of their sex would seem to violate "the basic concept of our system
that legal burdens should bear some relationship to individual responsibility...."
Weber v. Aetna Casualty Surety Co., 406 U.S. 164, 175 (1972).
And what differentiates sex from such nonsuspect statuses as intelligence
or physical disability, and aligns it with the recognized suspect criteria,
is that the sex characteristic frequently bears no relation to ability
to perform or contribute to society. As a result, statutory distinctions
between the sexes often have the effect of invidiously relegating the
entire class of females to inferior legal status without regard to the
actual capabilities of its individual members.36
justices found the statute unconstitutional on the authority of Reed
-- that administrative convenience was not a rational basis -- while deliberately
avoiding the characterization of sex as a suspect classification.37
They gave as the compelling reason for such avoidance the fact that
[t]he Equal Rights Amendment, which if adopted will resolve the substance
of this precise question, has been approved by the Congress and submitted
for ratification by the States. If this Amendment is duly adopted, it
will represent the will of the people accomplished in the manner prescribed
by the Constitution. By acting prematurely and unnecessarily,...the
Court has assumed a decisional responsibility at the very time when
state legislatures, functioning within the traditional democratic process,
are debating the proposed Amendment. It seems...that this reaching out
to pre-empt by judicial action a major political decision which is currently
in process of resolution does not reflect appropriate respect for duly
prescribed legislative processes.38
In cases after Reed and Frontiero the Court applied a "strict
rational basis" standard with greater and greater scrutiny, until
in 1976 a new standard, subsequently referred to as one of "intermediate
scrutiny," was articulated. On the surface, Craig v. Boren,
did not appear to be a potentially momentous case. It concerned an Oklahoma
law which prohibited the selling of "3.2" beer to men under
21, but allowed its sale to women over 18. The state's rationale for this
law was that more than ten times as many males as females between 18 and
21 were arrested for drunk driving. The Court found the law unconstitutional,
holding that "classifications by gender must serve important governmental
objectives and must be substantially related to achievement of those objectives."
It was not satisfied that "sex represents a legitimate, accurate
proxy for the regulation of drinking and driving."39
After Craig the Court no longer wrote plurality opinions in which
some justices supported use of strict scrutiny in gender cases and others
concurred or dissented on a different basis. Instead the "heightened
scrutiny" of the new intermediate standard was applied consistently,
though not unanimously, to strike down laws which made distinctions by
sex in half the cases that came before the Court.40
Yet even before Craig the language of the post Reed decisions
reflected a very different approach by the Court to women's status than
that of previous cases. No longer was women's family status determinant
of her legal status. Instead the very articulation by a State of the desirability
of economic dependency or women's unique responsibility for family obligations
to justify a sex discriminatory law was viewed as irrational. Two cases
decided in the Spring of 1975 illustrate this profound transformation
from the assumptions of Hoyt and earlier cases.
Weinberger v. Wiesenfeld challenged a provision of the Social
Security Act that provided benefits for the surviving widow and minor
children of a working man covered by the Act, but only for the minor children
of a covered woman. Wiesenfeld's wife was the primary earner in the family.
When she died in childbirth he received fewer benefits than she would
had he been the one to die. The unanimous opinion of the Court pointed
Since the Constitution forbids ... gender-based differentiation premised
upon assumptions as to dependency ... [it] also forbids the gender-based
differentiation that results in the efforts of female workers required
to pay social security taxes producing less protection for their families
than is produced by the efforts of men.
The Court further recognized the father's as well as the mother's responsibility
for child care.
It is no less important for a child to be cared for by its sole surviving
parent when the parent is male rather than female. And a father, no
less than a mother, has a constitutionally protected right to the "companionship,
care, custody, and management" of "the children he has sired
month later the Court went further in Stanton v. Stanton, a Utah
case in which a divorced father ceased paying child support to his daughter
when she reached age 18, but continued that for his son on the grounds
that in Utah girls were no longer minors after 18, but boys were until
age 21. It found that:
No longer is the female destined solely for the home and the rearing
of the family, and only the male for the marketplace and the world of
ideas....[I]f the female is not to be supported so long as the male,
she hardly can be expected to attend school as long as he does, and
bringing her education to an end earlier coincides with the role-typing
society has long imposed.42
Supreme Court continued to strike down state statutes which reinforced
role-typing and economic dependency, or which rested on "archaic
and overbroad generalizations". In doing so it invalidated statutes
that provided for Social Security benefits payable to widows but not to
for wives but not for husbands,44
welfare benefits to families with unemployed fathers but not unemployed
worker's compensation death benefits to widows, but to widowers only if
they could prove economic dependency.46
Even though intermediate scrutiny was not in place until 1976, by 1975
the Supreme Court was ready to take a new look at some state laws it had
previously upheld. One of these concerned jury service. In the years since
Hoyt more women had been added to the jury roles, and no state
excluded them totally, but they did not serve equally everywhere.47
Alabama's total exclusion was found unconstitutional under the Fourteenth
Amendment by a three-judge federal district court in 1966.48
That same year, the Supreme Court of Mississippi ruled that "the
legislature has the right to exclude women so that they may continue their
service as mothers, wives and homemakers, and also to protect them ...
from the filth, obscenity and noxious atmosphere that so often pervades
a courtroom during a jury trial."49
Mississippi's law was changed by the legislature in 1968, and South Carolina's
by a voter referendum in 1967. The state of Louisiana had a statute limiting
women's jury service that was virtually identical to the Florida statute
upheld in Hoyt in 1961. Taylor had been sentenced to death for
aggravated kidnapping by a jury chosen from an all male pool of 175. Even
before he was tried he claimed he was denied his Sixth Amendment right
to a fair trial by "a representative segment of the community".
This time the Court agreed. While it did not specifically overrule Hoyt,
it did say it was out of date. Substantiating its position with a lengthy
footnote on women's labor force participation, the Court concluded that
"[i]f it was ever the case that women were unqualified to sit on
juries or were so situated that none of them should be required to perform
jury service, that time has long since passed."50
It was nineteen years before the Supreme Court decided another case on
gender discrimination in jury service. When it did so in 1994, it followed
the path it had cut on race discrimination a few years earlier. In selecting
a jury, both sides of every case have the right to challenge a certain
number of individuals in the jury pool without giving a reason. These
are called peremptory challenges. In four cases decided between 1986 and
1992 the Supreme Court ruled that race cannot be the basis of a peremptory
challenge not only because defendants are entitled to a jury selected
without the taint of race discrimination, but because potential jurors
have a right to jury selection procedures that are free from stereotypes
and "historical prejudices".51
The federal courts of appeal disagreed on whether peremptory challenges
could be used to systematically eliminate all men or all women from a
jury. In 1993 the Supreme Court granted certiorari to an Alabama man who
was being sued for child support by a state agency. After the Alabama
used its peremptory challenges to remove 9 men, a jury of 12 women declared
him to be the father. The State supported its action on the grounds that
"men otherwise totally qualified to serve upon a jury might be more
sympathetic and receptive to the arguments of a man alleged in a paternity
action to be the father of an out-of-wedlock child, while women equally
qualified to serve upon a jury might be more sympathetic and receptive
to the arguments of the complaining witness who bore the child."52
Justice Blackmun, writing for the Court, expressed surprise that the state
would so freely rely on "the very stereotype the law condemns."
He went on to declare
Discrimination in jury selection, whether based on race or on gender,
causes harm to the litigants, the community, and the individual jurors
who are wrongfully excluded from participation in the judicial process.
The litigants are harmed by the risk that the prejudice which motivated
the discriminatory selection of the jury will infect the entire proceedings.
(cites omitted) The community is harmed by the State's participation
in the perpetuation of invidious group stereotypes and the inevitable
loss of confidence in our judicial system that state-sanctioned discrimination
in the courtroom engenders.53
decision's sweeping languauage hid some fears that the traditional role
of peremptory challenges -- to limit jury bias by allowing both parties
to remove jurors they did not feel good about even when a reason could
not be articulated -- was being eroded. Justice O'Connor voted with the
majority reluctantly and urged that the decision be limited to the state
as a party, not private litigants. Justices Rehnquist, Scalia and Thomas
dissented, on the grounds that the "heightened scrutiny" standard
for sex cases was not the "strict scrutiny" required for race.
Rehnquist went on to say that
Unlike the Court, I think the State has shown that jury strikes on the
basis of gender "substantially further" the State's legitimate
interest in achieving a fair and impartial trial through the venerable
practice of peremptory challenges. (cites omitted) The two sexes differ,
both biologically and, to a diminishing extent, in experience. It is
not merely "stereotyping" to say that these differences may
produce a difference in outlook which is brought to the jury room. Accordingly,
use of peremptory challenges on the basis of sex is generally not the
sort of derogatory and invidious act which peremptory challenges directed
at black jurors may be.54
schools have presented particular challenges. Although most schools are
now co-educational, neither the Court nor the Congress has decided that
schools segregated by sex hold quite the stigma as those segregated by
race. This is partially because sex segregated schools have never been
part of a state policy to denigrate a particular group in the way that
racial segregation was. Even when single-sex schools were most common
there were still many co-ed ones available -- though they didn't always
offer the same educational advantages or weren't always the most prestigious.
There is ambivalence also because of evidence that going to single sex
schools benefits at least some women.55
Consequently, the judicial response to single sex schools has been equivocal.
The Supreme Court faced the issue of the constitutionality of single-sex
public schools in 1971, 1977, and 1982. In 1971 it merely affirmed without
a written opinion the ruling of a District judge that men could not attend
South Carolina's female only state college.56
The lower court had relied on the rational basis test -- eight months
before Reed. In 1982 the Court finally held that equal protection
had been denied, but in a very limited context.
Mississippi University for Women, founded in 1884, had established a Nursing
School in 1970. Like the rest of its programs it was restricted to women
only. Men could audit classes, and participate as though they were students,
but they could not matriculate. A male R.N. who lived in the same town
as MUW wanted a B.A. in nursing but didn't want to move to attend one
of the other two schools in Mississippi which offered that degree coeducationally.
In a 5 to 4 decision written by the newest member of the Court, Justice
Sandra Day O'Connor, the Court held that "MUW's policy of excluding
males from admission ...tends to perpetuate the stereotyped view of nursing
as an exclusively woman's job," and thus is not consistent with the
State's claimed justification that the single-sex admissions policy "compensates
for discrimination against women and, therefore, constitutes educational
affirmative action." Instead the Court found that the "policy
of permitting men to attend classes as auditors fatally undermines its
claim that women, at least those in the School of Nursing, are adversely
affected by the presence of men."57
Midway between these two cases a more ambivalent Court had split 4 to
4 (Rehnquist didn't participate) on whether or not Philadelphia could
maintain sexually segregated public high schools. While the city had many
co-ed schools, it had only two college preparatory high schools for academically
superior students -- one for boys and one for girls. Susan Vorchheimer
did not want to be forced to choose between a co-ed environment and an
academically enriched one. However, the schools were similar in their
offerings except for a better science curriculum at the one for boys,
and Vorchheimer did not maintain that she wanted to attend the boys high
school to avail herself of science courses. The District court found that
the School Board could not substantiate "separate but equal"
schools, but the Circuit court found otherwise. Placing great weight on
Vorchheimer's failure to allege any educational deprivation, and the fact
that attendance at the superior schools was voluntary, it completely ignored
the "intangible factors" upon which the Supreme Court had relied
in dismantling racially segregated schools. "If there are benefits
or detriments inherent in the system, they fall on both sexes in equal
measure," it said. By dividing equally on appeal the Supreme Court
left the decision in force but without the precedential value of an affirmation.58
By 1992 very few single sex public schools remained. Two of these were
military colleges -- The Citadel in South Carolina and Virginia Military
Institute. The latter was one of fifteen public colleges in Virginia,
most of which had been single-sex at one time. In 1970 the University
of Virginia had integrated under threat of a federal District court order;59
in 1990 VMI was the only single sex school left in the state. When VMI's
male only policy was challenged that year the parties reflected a growing
consensus that, whatever the benefits of single sex education might be,
it was not good government policy to support such schools. The plaintiff
was the U.S. government, even though it was headed by a conservative Republican
administration. Friend of the Court briefs were filed by over a dozen
feminist and liberal organizations. The defendants were the State of Virginia,
VMI itself and its Board. But the black Democratic Governor of Virginia
and the female State Attorney General wanted no part of the case. Governor
Wilder responded to the complaint by stating that "No person should
be denied admittance to a state supported school because of his or her
gender." VMI had to enlist the aid of an alumnus to act as its pro
Although the federal district court found VMI's male only policy "fully
justified", the appeals court was ambivalent. Applying intermediate
scrutiny it said that VMI offered a unique educational experience, based
on mental and physical stress in a hostile, sexually homogenous environment
that "would be destroyed by coeducation." It also admitted that
"[m]en and women are different" and that "it is not the
goal of the Equal Protection Clause to attempt to make them the same....
[N]o one suggests that equal protection of the laws requires that all
laws apply to all persons without regard to actual differences."
However, it added, "While the data support a pedagogical justification
for a single-sex education, they do not materially favor either sex."
Therefore, the court asked, why does the Commonwealth of Virginia offer
"the opportunity only to men"? The court could not find a policy
statement which answered this question, apart from the Governor's opposition.
Since the Constitutional standard required a substantial relation to an
important governmental objective, and "evidence of a legitimate and
substantial state purpose is lacking", the appeals court sent the
case back to the District court to find a solution consistent with the
guarantees of the Fourteenth Amendment. Although the appeals court didn't
specify what this had to be, it suggested that the state admit women to
VMI, set up a "separate but equal" educational opportunity,
or "abandon state support of VMI, leaving [it]... to pursue its own
policies as a private institution." An appeal to the Supreme Court
VMI chose to fight. When the case was remanded to the district court it
presented a plan for women to take a "parallel program" called
the "Virginia Women's Institute for Leadership" at nearby Mary
Baldwin College for Women. Although the Justice Department opposed this
plan as a poor substitute for VMI's rigorous and highly disciplined military
environment, the district court judge who had originally approved VMI's
single-sex policy also approved the creation of a separate and admittedly
unequal program for women. He said it was "justified pedagogically
and ... not based on stereotyping."
[T]he controlling legal principles in this case do not require the Commonwealth
to provide a mirror image VMI for women. Rather, it is sufficient that
the Commonwealth provide an all-female program that will achieve substantially
similar outcomes in an all-female environment ... which takes into account
the differences and needs of each sex.61
The Constitution only protects individuals from action by the state, not
private parties. Thus private parties can discriminate on any basis they
choose unless the state says otherwise. Many statutes have been passed
prohibiting discrimination; sometimes those statutes are challenged as
themselves violative of a Constitutional provision. The Supreme Court
has heard three cases brought by private associations challenging restrictions
on their membership policies as interfering with their First Amendment
right of free association. California, Minnesota and New York City all
passed ordinances prohibiting sex (and some other) discriminations by
some types of clubs often thought of as private. Their rationale was that
many of these clubs were in fact arenas for the conduct of business or
the exchange of information important to people's careers, and that therefore
discrimination was "invidious." The Court has unanimously upheld
all of these statutes, ruling that any "slight infringement on ...
members' rights of expressive association ... is justified because it
serves the State's compelling interest in eliminating discrimination against
Current Rationales for Sex-discriminatory Laws
The Court has relied on two different rationales for sex discriminatory
statutes. The first is that women benefit. This was articulated in Kahn
v. Shevin, which was decided in 1974, before Craig but after
Frontiero. The Court upheld a Florida statute giving widows but
not widowers a $500 property tax exemption. The majority ruled that the
state law was "reasonably designed to further the state policy of
cushioning the financial impact of spousal loss upon the sex for which
that loss imposes a disproportionately heavy burden,"63
without questioning whether there might be some more appropriate indicator
than sex or financial incapacity. Even after Craig established
a more stringent standard than reasonableness the Court continued to look
favorably upon statutes which it felt operate "to compensate women
for past economic discrimination." Califano v. Webster upheld
a Social Security provision that, prior to 1972, permitted women to eliminate
more low-earning years from the calculation of their retirement benefits
than men because it "works directly to remedy some part of the effect
of past discrimination."64
Schlesinger v. Ballard introduced the second rationale, that men
and women are not "similarly situated." Federal statutes which
provided more time for female than for male naval officers to attain promotion
before mandatory discharge were upheld as being consistent with the goal
of providing women equitable career advancement opportunities. The Court
found that because women were restricted from combat and most sea duty,
it would take longer for them to compile favorable service records than
for men. Therefore, "the different treatment of men and women naval
officers... reflects, not archaic and overbroad generalizations, but,
instead the demonstrable fact that [they] are not similarly situated
with respect to opportunities for professional service."65
This explanation was also relied upon to uphold a California statute that
made statutory rape a crime that only males could commit against females.
The state Supreme Court had already subjected the classification to "strict
scrutiny" and found a "compelling state interest" in preventing
teenage pregnancies. Applying the lesser standard of "important governmental
objectives" the Supreme Court came to the same conclusion, but only
by ignoring the dissent's objection that a sex-specific statute was not
"substantially related" to the stated goal as long as a gender-neutral
one could achieve the same result.66
The Draft Registration Cases
This line of cases led inexorably to Rostker v. Goldberg, which
contested the requirement that males but not females register for a potential
draft. Draft registration had been discontinued in 1975, but was reactivated
by President Carter in 1980 as part of his response to the Soviet invasion
of Afghanistan. In his request to Congress for funds for this purpose
Carter also asked that the statute be amended to permit registration and
conscription of females as well. After extensive debate, Congress left
the statute intact. This activated a lawsuit that had begun in 1971 but
been dormant for many years. Three days before draft registration was
to begin a lower federal court found the Act unconstitutional and enjoined
the Government from further registration. Relying on the intermediate
scrutiny test of Craig the court concluded that "military
opinion, backed by extensive study, is that the availability of women
registrants would materially increase flexibility, not hamper it."67
The injunction was lifted and registration continued while the Supreme
Court pondered the effect of its new approach to gender cases on the oldest
bastion of the male establishment. In this effort the Court was caught
between the conflicting demands of two institutions to which it had traditionally
deferred -- the Congress and the military. The Court has always accorded
great weight to the decisions of Congress, which had restricted registration
to men. It has also deferred to judgements by the executive departments
in the area of military affairs, and the military had testified before
Congress that women should be registered (though not drafted). However,
the Court noted that Congress' thorough consideration of the issue clearly
established that its decision to exempt women was not the "accidental
byproduct of a traditional way of thinking about females." It concluded
that the "purpose of registration... was to prepare for a draft of
combat troops" and that "[w]omen as a group, ... unlike
men as a group, are not eligible for combat." Because men and women
were not "similarly situated" with regards to military service,
it was not unconstitutional to distinguish between them. "The Constitution
requires that Congress treat similarly situated persons similarly, not
that it engage in gestures of superficial equality."68
On the surface it might seem desirable for the Court to require equality
where men and women are similarly situated, but make exceptions apparently
in women's favor where they are not. However, since there are very few
circumstances in which men and women are similarly situated, this line
of thought could easily lead to a return of the inequitable protectionism
of the Muller era. The different standards that that case legitimated
for men and women provided only limited benefits. In the long run women
were protected from better jobs, overtime, and the opportunity to compete
with men rather than to be dependent on them.
An example of the consequences of protecting women from military service
is to be found in Personnel Administrator of Massachusetts v. Feeney.
While the Federal Government and almost all states give veterans preference
for civil service jobs, Massachusetts is one of the few that gives them
an absolute preference. After job candidates' scores have been computed
on the basis of an examination and an assessment of their training and
experience those who pass are ranked. However, all passing veterans are
ranked ahead of all nonveterans. Consequently, nonveteran Helen Feeney
had never been able to secure one of the many civil service jobs she took
exams for over a twelve year period even though she scored very high.
She held a lower level civil service job during this period which was
abolished in 1975, prompting her lawsuit. A lower federal court held the
statute unconstitutional on the grounds that while it was not intended
to discriminate against women, since only 1.8 percent of the veterans
in Massachusetts were female the exclusionary impact was so severe that
the State should be required to find a less extreme form of rewarding
veterans. The Supreme Court found otherwise. Ignoring the fact that women
were once restricted to only 2 percent of the armed forces, the Court
nonetheless said that a neutral law with an adverse impact is unconstitutional
only if discriminatory intent can be shown. It rejected the argument that
the exclusion of women was such an inevitable and foreseeable consequence
that the Massachusetts legislature must be held responsible for intending
it even if that were not its primary objective. Instead the Court said
that "the law remains what it purports to be: a preference for veterans
of either sex over nonveterans of either sex, not for men over women."69
Pregnancy and Parenthood
and parenthood have presented unique challenges to the Court and the results
have not been uniform. Gender neutral statutes applying to pregnant persons
may have a discriminatory impact on women even though all women do not
get pregnant and even fewer are pregnant at any given point in time. Similarly,
parenthood has a social and legal status in addition to its biological
one, and the three do not always coincide. The rights of parents are further
complicated by the assumption that in cases concerning children, the overriding
principle should be the best interests of the child. The delicate balancing
acts these conflicting concerns cause has led to inconsistent results
and occasionally convoluted reasoning.
In 1974 the Court heard two cases against school boards in Virginia and
Ohio which challenged policies that required pregnant teachers to take
unpaid maternity leaves beginning several months before birth and continuing
for several months afterwards. The Court found these requirements to be
discriminatory, but not on equal protection grounds. Instead the justices
said that the women were denied due process because the rules created
an irrebuttable presumption that pregnant teachers, or recent mothers,
were incapable of performing their duties. Such a presumption put too
heavy a burden on a woman's decision to have a child.70
However, that same year it upheld the exclusion of pregnancy from coverage
under the California disability insurance system. In Geduldig v. Aiello
the Court said that the
program does not exclude anyone from benefit eligibility because of
gender but merely removes one physical condition -- pregnancy -- from
the list of compensable disabilities. While it is true that only women
can become pregnant, it does not follow that every legislative classification
concerning pregnancy is a sex-based classification.... The program divides
potential recipients into two groups -- pregnant women and nonpregnant
year later the court again looked to the Due Process clause to strike
down a Utah statute that denied pregnant women unemployment benefits from
twelve weeks before until six weeks after birth. In order to receive benefits
from the Unemployment Insurance fund, claimants have to be able and willing
to work at their usual occupation. As in the school board cases, it was
the assumption that no woman could work during this period that
the Court found unacceptable.72
In 1976 Congress amended the Unemployment Compensation Act to prohibit
denial of claims solely on the basis of pregnancy or termination of pregnancy.73
This did not resolve the problems of women who quit their jobs because
they were pregnant. Unemployment benefits are not given to anyone who
quits a job, unless it is for "good cause." When a Missouri
women who quit found no job openings after giving birth and was denied
benefits, the Court upheld the State's judgment that childbirth was not
a "good cause." In analyzing the statute, Justice O'Connor said
that it should be construed "as prohibiting disadvantageous treatment,
rather than mandating preferential treatment."74
By and large the Court has permitted the States to make distinctions between
unwed mothers and fathers. A 1972 case appeared to be part of the emerging
trend to look more closely at gender distinctions, but it was temporary.
In Stanley v. Illinois a father who had intermittently lived with
and supported his three children and their mother for eighteen years protested
their automatic removal from his custody by the state after the mother's
death. He demanded the same hearing on his fitness as a parent which the
state accorded married fathers and all mothers. The state courts declined
to give him this until the Supreme Court said the Constitution entitled
him to equal protection with married fathers.75
But in five subsequent cases only one more statute was invalidated. In
1977 the Court upheld an immigration statute giving preferred status to
the children of unmarried mothers, but not fathers.76
It also upheld two Georgia statutes permitting unwed mothers but not fathers
to veto the adoption77
or sue for the wrongful death of a child.78
Since fathers who subsequently legitimated their children had the same
legal rights as other parents, the court found that the actual distinction
in the law was not one of gender but one between fathers who did and did
not legitimate their children.
In two New York cases raising the same issue -- whether an unmarried father
could block the adoption of his child -- the court split. The prospective
adoptive parent in both cases, as in the Georgia one, had married the
children's mother and wished to adopt her children over the objection
of the biological father. The court had to balance the traditional preference
for "the best interests of the child" against claims of gender
discrimination. In 1979 the Court ruled in favor of the biological father
by five to four.79
But in 1983 it returned to its earlier reasoning that the state had met
its due process obligations by providing a means by which the father could
legitimate his child and that a father who did not do so had no rights.80
As legal doctrine, these decisions on the rights of unwed fathers are
not consistent; the divided court reflects the competing priorities it
had to sort out and justify. However, if one reads the facts of the cases
apart from the legal analysis, the crucial factor appears to be kind of
relationship the father had with his children and their mother. The more
closely it approximated the social norm at some prior time -- i.e. how
long the father lived with the mother and supported the children -- the
more likely the court was to rule in his favor.
movement to change restrictive abortion laws began independently of and
earlier than the women's liberation movement, but when that movement emerged
it quickly captured the abortion issue as its own, energizing and publicizing
it along the way. It was the impetus of the feminist movement which led
to Roe v. Wade, the 1973 Supreme Court decision that eliminated
most state abortion laws, after only a few years of public debate and
state action on abortion. In some ways the Court was ahead of its time,
because public debate had not yet created a consensus. The Court's sweeping
removal of a century of legal restriction sparked massive efforts to reduce
and reverse it's effects. The legal and political controversy has become
so polarized that it borders on civil war. It has also tainted many issues
that are not obviously related to abortion, with the result that some
legislation which might have passed, or pass sooner, has been stymied.
The state battles over ratification of the ERA were infected by opponents'
claims that restrictions on abortion would be precluded by it as a denial
of equal rights on account of sex.81
The Court decisions and legislative initiatives that followed Roe v.
Wade can only be understood within a political context. Rather than
reflect changes in legal doctrine that often follow social change, as
exemplified by the reinterpretation of the Equal Protection Clause, new
decisions and laws are best seen as the victories and defeats of an ongoing
Laws prohibiting abortion were largely passed during the middle decades
of the Nineteenth Century. Prior to that time the rules of the English
Common Law prevailed, and those rules permitted abortion until the fetus
moved. This was called quickening and occurred between the sixteenth and
eighteenth week of pregnancy, or well into the second trimester. The movement
for state laws prohibiting all abortions (except to save the life of the
mother) was part of a larger movement by medical practitioners to institutionalize
and professionalize their occupation.82
Ironically, the medical profession also spearheaded the movement for legal
reform in the middle of the twentieth century. By the 1950s several hundred
thousand illegal abortions were being performed each year, with several
thousand ending in death. Many physicians felt their ability to help their
patients was limited by the strict laws; they sought ways of liberalizing
In 1967 Colorado became the first state to adopt a law permitting therapeutic
abortions if the life or mental health of the mother was threatened, if
pregnancy occurred from rape or incest, or if the fetus was deformed.
That same year several referral services were set up by non-physicians
to direct women to safer illegal abortions. The public debate over abortion
laws became more vociferous and in the next couple years another ten states
adopted therapeutic exceptions. Four states -- Alaska, Hawaii, New York,
and Washington -- went further and repealed virtually all restrictions
on abortion. Both of these developments were boosted by the women's movement
and the injection into the medical debate of the idea that reproductive
freedom was a woman's right. Cases began to reach the lower courts in
the late sixties. Initially these just chipped away at the legal restrictions.
Then in 1969 and 1970 the California Supreme Court and several federal
district courts declared their states' laws unconstitutional. In 1971
the Supreme Court granted certiorari to two cases from Texas and Georgia;
seven justices heard oral argument in 1971 but the Court asked for a rehearing
in 1972 with a full court. Its decision was announced on January 22, 1973.83
Justice Blackmun, writing the majority opinion in Roe v. Wade
and Doe v. Bolton, did not stick to legal analysis. Recognizing
the "sensitive and emotional nature of the abortion controversy,"
he surveyed medical, religious, moral, and historical material before
concluding that "This right of privacy, whether it be founded in
the Fourteenth Amendment's concept of personal liberty ... or, ... in
the Ninth Amendment's reservation of rights to the people, is broad
enough to encompass a woman's decision whether or not to terminate her
pregnancy." While asserting "that the word "person",
as used in the Fourteenth Amendment, "does not include the unborn"
the Court did recognize that "a State may properly assert important
interests in safeguarding health, in maintaining medical standards and
in protecting potential life."84
Therefore it adopted the medical division of pregnancy into three trimesters.
(a) For the stage prior to approximately the end of the first trimester,
the abortion decision and its effectuation must be left to the medical
judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first
trimester, the State, in promoting its interest in the health of the
mother, may, if it chooses, regulate the abortion procedure in ways
that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State, in promoting
its interest in the potentiality of human life may, if it chooses,
regulate and even proscribe, abortion except where it is necessary,
in appropriate medical judgment, for the preservation of the life
or health of the mother.85
forces organized and tested Roe's limits by passing laws and bringing
test cases. One group of laws restricted the use of public funds for abortions.
Called the "Hyde Amendments" for their most outspoken sponsor,
Cong. Henry Hyde (R. Ill.), these attachments to annual appropriations
bills deny any federal money authorized by these bills to be used for
abortions. Included are restrictions on abortions for military personnel,
Peace Corps volunteers, Indians served by federal health programs, health
benefits for federal employees, and foreign assistance programs for which
abortion is a family planning method. These laws exempt abortions to save
the life of the mother; some of them also exempt pregnancies from rape
or incest. All of these laws have stimulated acrimonious conflict.
The most controversial have been the restrictions on federal funds for
Medicaid recipients -- poor people. Several states responded to Roe
by refusing to pay for Medicaid abortions. In 1977 the Court held that
the States did not have to fund abortions for Medicaid eligible women
and it could choose to fund only "medically necessary" abortions
without violating the Equal Protection clause.86
The first Hyde Amendment passed Congress in 1976; it reached the Supreme
Court in 1980. The Court held that the federal government had no constitutional
or statutory obligation to fund abortions even when they were medically
As a result of the Hyde Amendments, the number of federally funded abortions
went from 294,600 in 1977 to 165 in 1990. States still have the option
of paying for the procedure with state money. In 1990 thirteen states
spent 65 million dollars for 162,418 abortions. The District of Columbia
used to be one of the biggest state funders of abortions, but because
much of its budget comes from the federal government, it is subject to
Congressional control. Since 1988 Congress has amended the annual appropriations
bills to forbid the District to use locally raised funds for abortions.88
The other set of cases have tested the extent to which states can regulate
the performance of abortion. The success of state restrictions has varied
with the composition of the court, which changed significantly during
the Reagan/Bush administrations. Initially the Court affirmed Roe,
and applied strict scrutiny to state regulation. It upheld requirements
that a doctor inform a woman about abortion and obtain written consent,
but only if the requirements did not interfere with the physician/patient
relationship. It found spousal consent statutes unconstitutional, but
parental notification requirements OK if a minor could present her request
to a judge when a parent would not agree. Reporting requirements about
abortions to the State were constitutional but mandatory hospitalization
and 24 hour waiting periods were not. Advertising could not be restricted,
and fetal protection statutes could only apply to viable fetuses.89
By 1989 enough conservatives had been added to the Court for the balance
of opinions to shift. On July 3, 1989, the Court upheld Missouri's prohibition
of abortions on public lands or by public employees and its requirement
that viability tests be done on women more than 20 weeks pregnant, by
five to four. While it did not overrule Roe, the multiple opinions
in Webster gave the States much more room for regulation than they
had had before.90
Several states quickly passed laws prohibiting or strictly regulating
abortion in anticipation that this Court would overrule Roe when
given the opportunity to do so. The Court only agreed to hear one of the
three cases appealed to it, and on June 29, 1992, declined to overrule
Roe, again by five to four. Three of the Reagan appointees, O'Connor,
Kennedy and Souter, wrote the joint opinion in which they opted to follow
the judicially conservative tradition of sticking to precedent. "The
Constitution serves human values, and while the effect of reliance on
Roe cannot be exactly measured, neither can the certain cost of
overruling Roe for people who have ordered their thinking and living
around that case be dismissed." However this decision did away with
the trimester framework and dropped strict scrutiny as the standard by
which regulations must be judged. Instead it held that the State's interest
in protecting human life extends throughout pregnancy; it may regulate
at any stage provided that the regulation does not impose an "undue
burden" on a woman's right to obtain an abortion.91
LOWER FEDERAL AND STATE CASES
Not all cases challenging gender-based laws reach the Supreme Court. Sometimes
the losing side decides not to appeal an adverse decision to the highest
court because the costs of doing so are high and expectations of success
may be low. Even if they do appeal, the Supreme Court, unlike the lower
courts, can decide whether or not to grant certiorari, i.e. whether it
wants to hear an appeal. Since Reed there have been hundreds of
cases which were resolved by lower or state courts. In most cases the
Federal courts, following the lead of the Supreme Court, have held gender-based
distinctions to be invalid. Sometimes they have not done so, and the case
has not been appealed to the Supreme Court or it has denied review. When
this happens, the geographical area over which that court has jurisdiction
must abide by it's decision, but courts elsewhere are free to formulate
their own interpretation (though they are often influenced by other courts).
Some courts have held laws to be Constitutional which forbid a person
of one sex to massage that of another, B girls (but not boys) from soliciting
patrons for drinks, topless female (but not male) dancers, and mothers
from signing the driver's license applications of minors if the father
was alive and had custody. A Maryland law which made it more difficult
for husbands than wives to prove libel if accused of extramarital sexual
activity was also upheld. Laws which have been held to be unconstitutional
include those which denied a wife the right to sue a third party for loss
of her injured husband's consortium, which prohibited some bars from serving
beverages to women, established different ages for males and females to
be tried in juvenile court, or different sentences for convicts, and which
required that the prefix "Miss" or "Mrs." appear before
a woman's name on her voter registration affidavit.92
When State courts have had to rule on gender-based laws or other state
actions, they have generally looked to the Supreme Court and its current
equal protection analysis even when State ERA's might have provided a
different standard. Fifteen states have added some form of equal rights
provision to their State Constitutions or included it in a general Constitutional
revision since 1968. Eight use language similar to that of the proposed
Federal amendment. Most of the others have clauses patterned after the
Equal Protection clause of the Fourteenth Amendment with sex included
as a category. The ERA states are: Alaska (1972), Colorado (1972),
Connecticut (1974), Hawaii (1972), Illinois (1971), Louisiana, Maryland
(1972), Massachusetts (1976), Montana (1973), New Hampshire (1974), New
Mexico (1973), Pennsylvania (1971), Texas (1972), Virginia (1971), and
Washington (1972). Utah and Wyoming included similar provisions in
their original Constitutions when they became states in 1896 and 1890
respectively. The judicial decisions are highly varied. Washington and
Pennsylvania courts have taken an even stricter approach than the Supreme
Court, striking down virtually all gender-based statutes including ones
which excluded women from contact sports dominated by men.93
Several state Supreme Courts have avoided interpreting their ERA by deciding
cases on other grounds or refusing to review them at all. Utah, Louisiana,
and Virginia have followed a traditional "rational basis" standard
and found virtually all sex-based laws to be reasonable. Several states
have applied the "strict scrutiny" standard,94
and others have relied on lesser standards (usually derived from the latest
Supreme Court language) or not articulated a specific standard. Thus laws
which have been held violative the ERA in some states have been upheld
in others. Even in states where the highest court has held sex to be a
suspect class, such as Illinois, lower state courts have applied the rule
inconsistently with the result that statutes invalidated in one jurisdiction
are upheld in another.95
Of those states that do not have ERAs only California and Oregon have
declared sex to be a suspect class, and California did so a few months
Oregon did not even rely on the Federal Constitution; in 1982 the State
Supreme Court interpreted a long-standing state constitutional prohibition
against granting any citizen or class of citizens special privileges to
invalidate legal classifications by sex.97
Several others have followed the Supreme Court in finding many sex-based
statutes to be unreasonable. Yet even these states have found statutes
to be rationally related to reasonable goals such as those permitting
wives to share in their husband's property after divorce but not vice
prohibiting girls from having paper routes before age 18.99
Some issues, such as maternal preference in custody cases, have provoked
extremely varied responses. The Utah Supreme Court found it "wise"
that children should be in the care of their mother. Maryland permits
the use of maternal preference as a tiebreaker. But New York, where voters
rejected a state ERA, a court held the maternal preference rule violated
the Fourteenth Amendment.100
While courts acting under a state ERA are not limited to standard equal
protection analysis few have chosen to break new paths. Those with ERAs
are likely to apply a stricter standard than those without, but most tend
to follow the lead of the Supreme Court. Judges also respond to legislative
history, the political culture of their own geographic area, current public
debate, and their perception of the customs and mores about proper sex
roles. The decisions interpreting state ERAs demonstrate that the courts
are not institutions removed from society responding only to legislative
dictate and abstract legal analysis. The law is neither static nor apolitical.
Instead it is a tool, only viable when it is actively used, and often
reflecting the views of those who use it. The changes in judicial attitude
of the last two decades have not occurred in a vacuum. They have been
as much a response to the women's liberation movement as the many legislative
changes have been.
The legislative changes in public policy have been as vast as the judicial
changes but they began earlier.
As early as 1923 equal pay was required in the federal civil service,
but the federal government did not mandate it for the private sector until
passage of the 1963 Equal Pay Act. First proposed in 1868 at the National
Labor Union Convention, equal pay for equal work did not become a national
issue until World War I. During the war women held jobs previously held
by men, creating concern that they would depress the wage rates and men
would be forced to work at the lower rates after the war. Montana and
Michigan enacted the first state equal pay laws in 1919, but it was not
until after World War II that a major bill covering 61 percent of the
labor force was placed before Congress, and another fifteen years before
it was passed.101
Passage was preceded by a great deal of debate on exactly what "equal
pay" and "equal work" meant, but it took the federal courts
to flesh out the meaning of the law. Federal courts ruled that work did
not need to be identical, but only "substantially equal." For
example, male orderlies could not be paid more than female nurses' aides
because they occasionally had to perform additional tasks such as tending
to the intimate needs of male patients. However, the Equal Pay Act does
permit differences in pay when based on seniority, merit, productivity
or "any other factor other than sex". Thus men selling men's
clothes could be paid more than women selling women's clothes because
the former were more profitable.102
The Court has ruled that wage differentials created by prior compliance
with protective labor laws or collective bargaining agreements were a
violation of the Equal Pay Act. It was not enough to abolish separate
seniority lists and pay scales; the base pay of the disadvantaged women
workers must also be increased.103
However, wage differentials based on the going market rate for the job,
even when that market rate is affected by the sex of the workers, do not
have to be equalized.
Title VII and the EEOC
When Congress debated the 1964 Civil Rights Act, one of the most controversial
sections in it was Title VII which prohibited discrimination in employment.
At the urging of the National Woman's Party, Rep. Howard W. Smith of Virginia,
an ERA supporter but a civil rights opponent, proposed a floor amendment
to add "sex" to "race, religion, color and national origin."
While this provision was strongly supported by the women of the House,
most of the House liberals opposed it as did the Women's Bureau of the
Labor Department. They were concerned that this additional responsibility
would dilute enforcement efforts for minorities. Nonetheless, neither
side felt strongly enough about it to spend more than a few hours in debate
and little of this was serious. Sex was added to Title VII through the
combined votes of Republican supporters and Southern Democratic opponents
of the civil rights bill.104
The Equal Employment Opportunity Commission, created to enforce Title
VII, responded to this ambiguous mandate by ignoring the sex provision.
This led several people within the EEOC, and many without, to feel that
it was necessary to create an organized group supporting women's rights
to put pressure on the government. As government employees they could
not organize such a group, but they spoke privately with those whom they
thought could do so, including Betty Friedan and many members of the State
Commissions on the Status of Women. Partially as a result of their efforts,
the National Organization for Women was formed in 1966 and directed a
good portion of its initial energies at changing the guidelines of the
EEOC and supporting legal cases to obtain favorable court rulings.105
Initially the EEOC supported protective labor laws, largely because organized
labor had fought for them for decades and argued that they were a necessary
protection for women. Despite this lack of support, many blue collar women
who felt their denial of job opportunities was justified by employers
on the basis of state protective laws saw Title VII as an opportunity
to take their cases to court. The court decisions were repeatedly in their
favor. Within a few years virtually all such laws were rendered void,
or were subsequently applied to men as well.106
Even with protective laws out of the way, there were many long-standing
practices which treated women differently from men. The initial court
decisions were not as consistently in women's favor. For example Martin-Marietta
Corporation would not employ the mothers of pre-school children on its
assembly lines, even though it would hire the fathers of those children.
Since the company did in fact hire lots of women, the lower federal courts
ruled that it did not discriminate. Although the Supreme Court did reject
this "sex-plus" theory, it did not do so unequivocally. Instead
it remanded the case to a lower court to ascertain whether having preschool
children actually interfered with a woman's job performance.107
Despite this ambiguity, the Court's rejection of "sex-plus"
was used by lower courts to relieve women of burdens not imposed on male
employees even when the job was restricted to women. Flight attendants,
for example, not only had to be female, but unmarried, under 32, could
not wear glasses or be even slightly overweight. Several federal courts
ended these restrictions, as well as the prohibition on men.108
Other traditional practices which channeled women into sex-typed jobs
were overturned after several years of struggle. For example, newspapers
once listed Help Wanted ads separately by sex. Early EEOC guidelines were
silent on this practice, though it forbade newspapers to do so by race,
religion and national origin. When the agency finally ruled, it permitted
sex-segregated ads provided a non-discriminatory disclaimer was placed
at the beginning of each heading. In Pittsburgh Press v. Pittsburgh
Commission on Human Relations, the Supreme Court rejected the newspaper's
argument that placement of the ads was a form of speech protected by the
First Amendment. Instead the court said it was at best commercial speech,
which could be regulated, and furthermore speech which furthered the illegal
activity of sex discrimination.109
One of the biggest hurdles for feminist litigators was an exception put
in Title VII for jobs for which sex was a bona fide occupational qualification.
If defined broadly, the bfoq would become a very large loophole. Early
decisions were mixed. The courts ruled that men could be flight attendants110
but women could not be guards in male prisons111
However, under pressure from feminists, the EEOC defined the bfoq narrowly
and the federal courts largely followed suit. Although assessing if sex
was a bfoq for a particular job had to be done on a case by case basis,
by 1991 the Supreme Court had repudiated the last vestiges of protection.
Johnson Controls, Inc., would not employ women in its battery manufacturing
operations unless they were beyond childbearing age or could prove they
were sterile. The company was concerned that exposure to lead would harm
any fetus carried by a female employee before she knew she was pregnant.
In UAW v. Johnson Controls the Court ruled that the Pregnancy Disability
Act, which had amended Title VII in 1978 to require that pregnant women
be treated like other women, precluded potentially pregnant women from
being singled out for discrimination. Since only women were required to
prove infertility the company's policy was therefore in violation of Title
Fertile women, as far as appears in the record, participate in the manufacture
of batteries as efficiently as anyone else. Johnson Controls professed
moral and ethical concerns about the welfare of the next generation
do not suffice to establish a BFOQ of female sterility. Decisions about
the welfare of future children must be left to the parents who conceive,
bear, support, and raise them rather than to the employers who hire
those parents or the courts.112
For several years women tried to use the Equal Pay Act and Title VII to
combat wage disparities between male and female dominated jobs before
the courts finally refused to extend these laws that far. It's practically
a truism that male-dominated jobs pay more than female-dominated jobs,
regardless of the content, location or working conditions of the job.
This leaves open the questions of why this is so and how it can
be remedied. During the 1980s, women and labor unions demanded "equal
pay for work of equal value", otherwise known as comparable worth
or pay equity. Assessing the relative value of different jobs to an employer
in order to establish equitable pay rates was not a new idea. During World
War II, under pressure from the War Labor Board to stabilize wages and
avoid strikes, many large companies turned to systems of job evaluation
to determine wages. They hired consultants to evaluate jobs in their plants
and assign them points based on the skill, effort, responsibility and
working conditions involved. Relative wages were determined by each job's
relative point value.113
These job evaluation systems generally showed that male dominated jobs
paid 20-40 percent more than female dominated jobs of equal point values.
Since jobs were often segregated by sex, some plants even had separate
pay scales which deliberately set the rate for women's jobs below men's
jobs with equal points. During the 1970s labor unions began to argue that
pay rates should be equalized. They did this because their usual demands
for higher wages through collective bargaining were stymied by the poor
economic climate. Demands for pay equity, with the possibility of a lawsuit
lurking in the background, was one of the few ways available to improve
at least some of their members' compensation without a strike. The leaders
in making comparable worth claims and filing suits have been the unions
of government employees, particularly the American Federation of State,
County and Municipal Employees. This is partially because government jobs
are heavily female, and partially because political pressure could be
put on governors and state legislatures to do the job evaluation studies
necessary to illuminate wage disparities by sex. During the more affluent
1980s most states commissioned studies and many raised wages as a result.
There were some strikes and some litigation. When it looked like these
cases might succeed in incorporating pay equity claims into Title VII
law, the Reagan administration threw the weight of the Justice Department
behind the opposition, with both the EEOC and the Civil Rights Commission
joining the chorus. The ironic outcome was that pay equity was stopped
at the national level even while it was succeeding at the state and local
The Equal Rights Amendment
The Equal Rights Amendment was first introduced into Congress in 1923
at the instigation of the National Woman's Party. There were many sex-specific
laws on the books and the NWP felt that another Constitutional amendment
was the quickest and most thorough way to remove them. During World War II the NWP began a major campaign for Congressional passage, and
rewrote the original language to read "Equality of rights under the
law shall not be denied or abridged by the United States or by any State
on account of sex." It was voted on by the Senate three times --
in 1946, 1950 and 1953. The first time it passed the Senate by 38 to 35,
without the two-thirds necessary to be sent to the states. In 1950 and
1953 the ERA received more than two thirds of the votes, but only after
a "rider" was added that "the provisions of this article
shall not be construed to impair any rights, benefits or exemptions conferred
by law upon persons of the female sex." This gutted the ERA, so supporters
did not ask the House to vote on it.
The primary opposition to the ERA had always been from social reformers
and labor unions who feared it would eradicate protective labor laws.
By 1970, federal court decisions on Title VII had mooted this issue. When
the emerging feminist movement turned its attention to the ERA, the only
major opposition was fading from the field. After a two year battle led
by Martha Griffiths (D. Mich.) in the House and Birch Bayh (D. Ind.) in
the Senate, involving a potpourri of feminist, women's, establishment,
and liberal organizations, the Equal Rights Amendment was sent to the
states for ratification on March 22, 1972.
Initially the states rushed to ratify; 22 did so by the end of the year
and eight more in 1973. However, the ERA stimulated a backlash from the
right which had been looking on the growing feminist movement with apprehension.
The ERA became a symbolic issue on which the right projected its worse
fears about the goals of the new movement and mobilized public sentiment
against it. Over time, support for the ERA faded; by 1978 only 35 of the
needed 38 states had ratified. On October 20, 1978 Congress passed a Joint
Resolution extending the seven-year deadline for ratification. This bought
more time, but not more states; the ERA expired on June 30, 1982.115
Although the ERA was not ratified, the two-year battle had some very beneficial
side effects. It created a climate in Congress that there was a serious
constituent interest in women's rights and established liaisons between
feminist organizations and Congressional staff. With this impetus the
92nd Congress that sent the ERA to the states passed a bumper crop of
women's rights legislation in 1971-72. In addition to the ERA there were
laws which: 1) Expanded the coverage of Title VII and the enforcement
powers of the EEOC; 2) Prohibited sex discrimination in all federally
aided education programs (Title IX); 3) Added sex discrimination to the
jurisdiction of the U.S. Commission on Civil Rights; 4) Prohibited sex
discrimination in State programs funded by federal revenue sharing; 5)
Provided free day care for children of poor families and a sliding fee
scale for higher-income families which was vetoed by President Nixon;
6) Provided for a child care tax deduction for some parents; 7) Added
prohibitions against sex discrimination to a plethora of federally funded
programs including health training, Appalachian redevelopment, and water
Subsequent Congresses have also been active. New laws included the Equal
Credit Opportunity Act, the Women's Educational Equity Act which provides
grants to design programs and activities to eliminate stereotyping and
achieve educational equity, creation of the National Center for the Control
and Prevention of Rape, an amendment to the Foreign Assistance Act requiring
particular attention be given to programs, projects and activities which
tend to integrate women into the national economies of foreign countries,
prohibitions of discrimination in the sale, rental or financing of housing,
an amendment to Title VII to include pregnancy in employment disability
insurance coverage, admission of women to the military academies and the
addition of still more anti-discrimination provisions to federally funded
programs such as small business loans.
The States have also been active arenas. Laws have been passed in most
states prohibiting sex discrimination in employment, housing, credit,
and in some states prohibiting discrimination in insurance, education
and public accommodations. Most states now have no-fault divorce provisions;
all but four have equal custody and support laws (two others have equal
custody but provide support only for the wife). The changes have been
partially a result of pressure from feminist and other public interest
groups and partially in response to changes in federal legislation and
Supreme Court decisions. Many states have followed the lead of the Federal
Government in conducting studies to identify gender-based distinctions
in their laws and recommend changes. Most of these studies were in response
to efforts to adopt a state ERA or ratify the federal amendment.
For a discussion of the changing state of national/state relations
see the Symposium on "Federalism: Aftermath of the 1980s and Prospects
for the 1990s" in 26:2 P.S.: Political Science and Politics,
June 1993, pp. 172-195.
United States v. Yazell, 382 U.S. 341, 361 (1966) (Black,
Edward Mansfield, The Legal Rights, Liabilities and Duties of
Women, Salem, Mass.: Jewett and Co., 1845, p. 273.
Leo Kanowitz, Women and the Law: The Unfinished Revolution,
Albuquerque, NM: U. New Mexico Press, 1969, Chapter 3.
41 American Jurisprudence Second, 348. A husband was not
chargeable for any debts other than necessities. There are many state
court decisions on what constitutes a necessity and what proof must be
offered that a husband failed to supply it.
Kirchberg v. Feenstra, 450 U.S. 455 (1981).
H.R. Rep. No. 1274, 80th Cong. 2nd Sess, pp. 241, 2258-59 (1948).
Revenue Act of 1948, §§ 301-305, 62 Stat. 114-16 (1948), now
Int. Rev. Code of 1954, § 6013. This is discussed in Kenneth M. Davidson,
Ruth B. Ginsburg, and Herma Hill Kay, Sex Based Discrimination: Text,
Cases and Materials, St. Paul.: West Publishing Co. 1974, pp. 528-533.
Harry D. Krause, Family Law, St. Paul: West Publishing Co.,
1988, p. 113. The Wisconsin statute is at Wis. Stat. Ann. § 766.001-766.97.
Since these laws have changed over time there is no single source.
The Handbook on Women Workers, published by the Women's Bureau
of the Department of Labor every few years since its inception in 1920,
usually has a section on state laws. In the early sixties, State Commissions
on the Status of Women compiled the laws of their states. Leo Kanowitz
summarized the status of Women and the Law: The Unfinished Revolution,
Albuquerque: University of New Mexico Press, 1969, as it existed in the
mid sixties. And various legal reference works, such as American Jurisprudence
Second, regularly compile and annotate state court decisions on different
aspects of the law, including those affecting women. Family Law Quarterly
publishes an annual compilation of "Family Law in the Fifty States".
Equal Rights, Nov. 8, 1924, p. 307; Jan. 31, 1925, p. 403.
United States v. Yazell, 382 U.S. 341 (1966).
Elizabeth Baker, Technology and Women's Work, New York:
Columbia University Press, 1964, pp. 91-96.
Quoted in Alice Henry, The Trade Union Woman, New York:
Appleton and Co., 1915, p. 24.
Lochner v. New York, 198 U.S. 45, 53 (1905).
Muller v. Oregon, 208 U.S. 412, 422 (1908).
Bunting v. Oregon, 243 U.S. 426 (1917). An exception was
minimum wage legislation which the Supreme Court would not uphold for
either men or women until Justice Roberts' dramatic reversal of his opposition
to Roosevelt's New Deal legislation in 1937 shifted the direction of the
5 to 4 decisions. Compare Adkins v. Children's Hospital, 261 U.S.
525 (1923) with West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
Baker, pp. 401-4.
J. Stanley Lemons, The Woman Citizen: Social Feminist in the
1920s, Urbana, Ill. : University of Illinois Press, 1973. pp. 63-8,
235-6. The House Committee on Elections responded favorably to Owen's
eloquent appeal and condemnation of the limitations of the 1922 Cable
Act. It recommended she be seated and the House concurred.
Strauder v. West Virginia, 100 U.S. 303, 310 (1880).
The common-law doctrine was appropriately called "propter
defectum sexus" or a "defect of sex." Lemons, pp. 69-73.
William Blackstone, 2 Commentaries 362. The Handbook of Women
Workers also lists the statutes on jury service. Federal law is at
28 U.S.C. § 1861.
Lemons, p. 79. Susan Ware, Holding Their Own: American Women
in the 1930s, Boston: Twayne, 1982, p. 28, Lois Scharf, To Work
and to Wed: Female Employment, Feminism and the Great Depression,
Westport, Conn.: Greenwood Press, 1980, Chapter 4.
Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141-142 (1873),
(J. Bradley, concurring). See also Ex parte Lockwood, 154 U.S.
Hoyt v. Florida, 368 U.S. 57, 59. 61, 62, 68 (1961).
Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627
(1874), relying on the Slaughter House Cases, 83 U.S. (16 Wall.)
Slaughter House Cases.
Yick Wo v. Hopkins, 118 U.S. 356 (1886).
Truax v. Raich, 239 U.S. 33 (1915).
Laurence H. Tribe, American Constitutional Law, New York:
The Foundation Press, 1978, pp. 1002-1110.
Judith A. Baer Women in American Law, New York: Holmes and
Meier, 1991, pp. 28-35.
Goesaert et. al. v. Cleary, et. al., Members of the Liquor Control
Commission of Michigan, 335 U.S. 464 (1948).
Reed v. Reed, 368 U.S. 57 (1971).
Tribe, p. 1082. For example in 1968 the Court overturned a Louisiana
statute which denied children born out of wedlock the right to recover
for the wrongful death of their mother. By 6 to 3, the Court held that
the state's rationale that such a statute promoted morality and discouraged
non-marital births wasn't sufficient to deny the orphaned children the
equal protection of the laws. Levy v. Louisiana, 391 U.S. 68 (1968).
Jo Freeman, The Politics of Women's Liberation, New York:
McKay, 1975, pp. 147-148, 213-220.
Goesaert at .
Frontiero v. Richardson, 411 U.S. 677, 684, 686-687 (1973).
This opinion was subscribed to by Justices Brennan, Douglas, White and
The three were Powell, Burger and Blackmun. Justice Stewart concurred
without joining either opinion, and Justice Rehnquist dissented for the
reasons stated in the district court opinion, Frontiero v. Laird,
341 F.Supp. 201 (1972), that administrative convenience was a rational
basis. If Stewart had joined the four justices who wrote the plurality
opinion, sex would have become a "suspect" classification. This
would have changed many subsequent judicial decisions, particularly by
State and lower federal courts, and perhaps made the State and federal
ERAs legally unnecessary.
Frontiero v. Richardson, 411 U.S. 677, 692 (1973).
Craig v. Boren, 429 U.S. 190, 197, 204 (1976).
Between 1971 and 1984 the Supreme Court applied equal protection
analysis to twenty-five cases of sex based classifications and found thirteen
of them to be unconstitutional. Of the eight cases decided before Craig
five sex specific statutes were struck. In the sixteen post Craig
cases the court split evenly. Susan Gluck Mezey, In Pursuit of Equality:
Women, Public Policy and the Federal Courts, New York: St. Martin's
Press, 1992, has a summary chart of these cases on pp. 22-23.
Weinberger v. Wiesenfeld, 420 U.S. 636, 645, 652 (1975).
Stanton v. Stanton, 421 U.S. 7, 14-15 (1975).
Califano v. Goldfarb, 430 U.S. 199 (1977).
Orr v. Orr, 440 U.S. 268 (1979).
Califano v. Westcott, 443 U.S. 76 (1979).
Wengler v. Druggists Mutual Insurance Company, 446 U.S.
According to the 1975 Handbook of Women Workers, at that
time six states exempted women solely on the basis of sex, and ten allowed
only women to be excused due to family responsibilities; p. 366.
White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966).
State v. Hall 187 So.2d 861, 863 (Miss), appeal dismissed
385 U.S. 98 (1966).
Taylor v. Louisiana, 419 US 522, 537 (1975). Seven justices
joined in the opinion. Burger concurred and Rehnquist dissented. Because
the decision rested on the Sixth Amendment establishing the rights of
criminal defendants, it only applied to women's participation in criminal
juries. However, both criminal and civil juries are drawn from the same
pool, so the practical effect of Taylor was to remove all sex specific
restrictions from all jurors.
Batson v. Kentucky, 475 U.S. 79 (1986);Powers v. Ohio, 499
U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991);
Georgia v. McCollum, 505 U.S. ----, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).
Brief for Respondent at 10 cited in J.E.B. v. State of Alabama
ex rel. T.B., 62 USLW 4219 (1994).
J.E.B. v. State of Alabama ex rel. T.B., 62 USLW 4219 (1994).
This is argued by Janella Miller, "The Future of Private Women's
Colleges" 7 Harvard Women's Law Journal, (1984). See also
Alexander W. Astin, Four Critical Years: Effects of College on Beliefs,
Attitudes and Knowledge, San Francisco, Calif.: Jossey-Bass 1977.
Williams v. McNair, 401 U.S. 951 (1971) affirming 316 F.Supp.
134 (D.S.C. 1970). Three lower federal courts upheld challenges to sex
segregated schools, but under circumstances which did not lead to Supreme
Court review. Kirstein v. Rectors and Visitors of the University of
Virginia, 308 F. Supp. 184 (E.D. Va. 1970); Bray v. Lee, 337
F. Supp. 934 (D. Mass. 1972); Berkelman v. San Francisco Unified School
District, 501 F.2d 1264 (9th Circ. 1974).
Mississippi University for Women et. al. v. Joe Hogan, 458
U.S., 718, (1982). However, since Congress in Title IX of the 1972 Educational
Amendments Act had specifically authorized the continuance of single-sex
public undergraduate institutions which "traditionally and continually
from its establishment has had a policy of admitting only students of
one sex," 20 U.S.C. § 1681(a), this ruling applied only to the
School of Nursing and not to the entire University.
Vorchheimer v. School District of Philadelphia, 430 U.S.
703 (1977), 532 F. 2d 880, 886, (3rd Cir. 1976), overturning 400 F. Supp.
326 (E.D.Pa. 1975).
Kirstein v. Rectors and Visitors of the University of Virginia,
308 F. Supp. 184 (E.D. Va. 1970)
United States v. Virginia Military Institute, 976, F.2d
980, 895, 897-900. (4th Cir. 1992). On March 2, 1993, a law suit was filed
against The Citadel by Shannon Richey Faulkner, who had been provisionally
admitted by having references to her sex omitted from her high school
transcript. The Citadel rejected her after discovering she was female.
The Justice Department has joined the suit. New York Times, May
2, 1993, p. 24:5. The Fourth Circuit Court of Appeals ordered that she
be allowed to attend day classes while the court considered her case.
210 F.3d 226 (4th Cir. 1993), 1994 WL 5621 (4th Cir. 1994); stay denied,
114 S.Ct. 872 (1994). Trial began in May of 1994. New York Times,
May 18, 1994, p. A16:1.
U.S. v. Commonwealth of Virginia, 1994 WL 172275 at 10 (W.D.Va.,
April 29, 1994) This time the Commonwealth of Virginia, now under a Republican
administration, supported VMI. The previous fall the Democratic state
attorney general had lost her campaign for governor. Washington Post,
February 10, 1994, p. A-10.
Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984). Board
of Directors of Rotary International v. Rotary Club of Duarte, 481
U.S. 537 (1987). New York State Club Association Inc., v. City of New
York, 487 U.S. 1 (1988). See The New York Times, Dec. 8, 1991,
p. 38:1 for a review of the impact of these decisions.
Kahn v. Shevin, 416 U.S. 351, 355 (1974).
Califano v. Webster, 430 U.S. 313, 318 (1977). Because Congress
eliminated this exception in 1972 it only applied to men who reached age
62 before that time. The Court held similarly in Heckler v. Matthews,
465 U.S. 728 (1984), which concerned a technicality in the social security
law that benefitted women between 1977 and 1982.
Schlesinger v. Ballard, 419, U.S. 498, 508 (1975).
Michael M. v. Superior Court of Sonoma County, 450 U.S.
464, 472, (1981). Most states have gender-neutral statutory rape laws.
Prior to this case three Circuit courts had struck down gender-based statutory
rape laws, and the Supreme Court had declined a request for review of
one of them. See Navedo v. Preisser, 630 F.2d 636 (8th Cir. 1980),
U.S. v. Hicks, 625 F.2d 216 (9th Cir. 1980), Meloon v. Helgemoe,
564 F.2d 602 (1st Cir. 1977), cert. denied 436 U.S. 950 (1978).
Rostker v. Goldberg, 509 F.Supp. 586, 603 (E.D. Pa. 1980).
Rostker v. Goldberg, 453 U.S. 57, 74, 76, 79 (1981). Until
1993 women were restricted from combat in the Navy and Air Force by statute,
10 U.S.C. § 6015 and § 8549, and in the Army and Marine Corps
by internal policy. In April of that year Secretary of Defense Les Aspin
lifted the ban on women in aerial combat and asked Congress to alter the
law to permit women to serve on warships. New York Times, April
28, 1993, p. 1:6.
Personnel Administrator of Massachusetts v. Feeney, 442
U.S. 256, 280 (1979), overturning 451 F.Supp. 143 (Mass. 1978). In 1993
women were 11.5 percent of those in the active duty armed forces. New
York Times, May 2, 1993, p. IV:4:5.
Cohen v. Chesterfield County School Board and Cleveland
Board of Education v. La Fleur, 414 U.S. 632 (1974). Almost all of
the lower courts that had heard similar cases found these rules to be
discriminatory. See n.8 for a list.
Geduldig v. Aiello, 417 U.S. 484, 496-7 n20, (1974).
Turner v. Department of Employment Security, 423 U.S. 44
90 Stat. 2667 (1976).
Wimberly v. Labor and Industrial Relations Commission, 479
U.S. 272, 281 (1987).
Stanley v. Illinois, 405 U.S. 645 (1972).
Fiallo v. Bell 430 U.S. 787 (1977).
Quilloin v. Walcott, 434 U.S. 246 (1978).
Parham v. Hughes 441 U.S. 347 (1979).
Caban v. Mohammed, 441 U.S. 380 (1979).
Lehr v. Robertson, 463 U.S. 248 (1983).
Gilbert Y. Steiner, Constitutional Inequality: The Political
fortunes of the Equal Rights Amendment, Washington, D.C., Brookings
Mohr, James C., Abortion in America: The Origins and Evolution
of National Policy, 1800-1900, New York: Oxford University Press,
1978, is the definitive study of this movement.
Leslie Goldstein, The Constitutional Rights of Women: Cases
in Law and Social Change, New York: Longman, 1979, pp. 272-74. Lawrence
Lader, Abortion II: Making the Revolution, Boston: Beacon Press,
1973, Chapter 13.
410 U.S. 113, 153 (1973).
Id. at 164-65.
Beal v. Doe, 432 U.S. 438 (1977), Maher v. Roe, 432
U.S. 464 (1977), Poelker v. Doe, 432 U.S. 519 (1977) (per curiam).
Harris v. McRae, 448 U.S. 297 (1980).
Rachel Benson Gold and Daniel Daley, "Public Funding of Contraceptive,
Sterilization and Abortion Services, Fiscal Year 1990", 23:5 Family
Planning Perspectives, Sept./Oct. 1991, pp. 198-99.
Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Bellotti
v. Baird, 443 U.S. 622 (1979); Colautti v. Franklin, 439 U.S.
379 (1979); H.D. v. Matheson, 450 U.S. 398 (1981); City of Akron
v. Akron Center for Reproductive Health, Inc., 462 U.s. 416 (1983);
Planned Parenthood Association of Kansas City, Missouri Inc. v. Ashcroft,
462 U.S. 476 (1983); Hodgson v. Minnesota, 110 S.Ct. 2926 (1989);
Ohio v. Akron Center for Reproductive Health, 110 S.Ct. 2972 (1989).
Webster v. Reproductive Health Services, 492 U.S. 490 (1989).
Planned Parenthood of Southeastern Pennsylvania v. Casey,
112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). The Court declined to hear appeals
from Louisiana and Guam, where laws banning most abortions had been found
unconstitutional by lower federal courts. It also declined to hear a Mississippi
case challenging restrictions similar to the Pennsylvania ones upheld
These cases and others are reviewed by Daniel A. Per-Lee, "Validity,
Under Equal Protection Clause of Fourteenth Amendment, of Gender-Based
Classifications Arising by Operation of State Law -- Federal Cases,"
60 Lawyer's Edition Second 1188 (1979).
However, even Washington upheld the denial of a marriage license
to two males on the grounds that both sexes were affected equally by the
requirement that legal marriages be heterosexual. Singer v. Hara,
11 Wash. App. 247, 522 P.2d 1187 (1974). It also supported statutes requiring
election of an equal number of men and women to Democratic party committees
as a rational means to achieve desired equality. Marchioro v. Chaney
90 Wash. 2d. 298, 582 P.D. 487 (1978).
But this has not prevented them from upholding school regulations
restricting the length of boys' but not girls' hair, Mercer v. The
Board of Trustees, 538 S.W.2d. 201 (Tex. Civ. App. 1976), or prison
regulations that required women visitors to male prisons to wear brassieres,
Holdman v. Olim, 581 P.2d. 1164 (Hawaii 1978).
Comment, "Equal Rights Provisions: The Experience Under State
Constitutions," 65 California Law Review 1086-1112 (1977);
Paul M. Kurtz, "The State Equal Rights Amendments and Their Impact
on Domestic Relations Law," 11 Family Law Quarterly, 101-150
(1977); Dawn Marie Driscoll and Barbara J. Rouse, "Through a Glass
Darkly: A Look at State Equal Rights Amendments," 12 Suffolk University
Law Review 1282-1311 (1978); Philip E. Hassman, "Construction
and Application of State Equal Rights Amendments Forbidding Determination
of Rights Based on Sex," 90 American Law Reports Third 158-216,
Sail'er Inn v. Kirby, 5 Cal. 3rd 1, 485 P.2d 529, 95 Cal.
Rptr.. 329 (1971), invalidated a state statute prohibiting women from
Hewett v. State Accident Insurance Fund Corporation, 294
Or. 33, 653 P.2d 970 (1982).
M. v. M., 321 A.2d. 115 (Del. Sup. Ct. 1974).
Warshafsky v. Journal Co., 63 Wis.2d. 130,216 N.W.2d. 197
Compare Cox v. Cox, 532 P.2d. 994 (Utah 1975); Cooke
v. Cooke, 21 Md. App. 376, 319 A.2d. 841 (Md. 1974); State ex.
rel. Watts v. Watts, 77 Misc.2d. 178, 350 N.Y.S.2d. 285 (N.Y. Fam.
Cynthia Harrison, On Account of Sex: The Politics of Women's
Issues, 1945-1968, Berkeley, Calif.: U. Cal. Press, 1988, Chapters
3 and 6.
Schultz v. Wheaton Glass Company 421 F.2d 259 (3rd Cir.
1970); Schultz v. American Can Co., 424 F.2d 356 (8th Cir. 1970)
Hodgson v. Brookhaven General Hospital 436 F.2d 719 (5th Cir. 1970);
Hodgson v. Robert Hall Clothes 473 F.2d 589 (3rd Cir. 1973).
Corning Glass Works v. Brennan, 417 U.S. 188 (1974).
Jo Freeman, "How Sex Got Into Title VII: Persistent Opportunism
as a Maker of Public Policy", Law and Inequality: A Journal of
Theory and Practice, Vol. 9, No. 2, March 1991, pp. 163-184. 110 Congressional
Record, February 8, 1964, pp. 2577-84. The vote was 168 to 133, but
was not a roll-call vote. Rep. Martha Griffiths (D. Mich), who helped
count the vote, identified its composition.
Freeman, 1975, p. 54.
The actual transition from protective labor laws to equal employment
opportunity took several years; a few such laws still remain on the books.
See U.S. Dept. of Labor, Women's Bureau, State Labor Laws in Transition:
From Protection to Equal Status for Women, 1976, and compare it with
Time of Change: 1983 Handbook on Women Workers, Bulletin 298, Washington,
D.C.: Government Printing Office, Chapter 7. The most important cases
were Weeks v., Southern Bell Telephone & Telegraph, 408 F.2d
228 (5th Cir. 1969); Rosenfeld v. Southern Pacific, 293 F. Supp.
1219 (C.D. Cal. 1968), 444 F.2d 1219 (9th Cir. 1971); Bowe v. Colgate,
416 F.2d. 711 (7th Cir. 1969). See also Judith A. Baer, The Chains
of Protection: The Judicial Response to Women's Labor Legislation,
Westport, Conn.: Greenwood Press, 1978, 166, 174 n. 137.
Phillips v. Martin Marietta Corporation, 400 U.S. 542 (1971).
This is discussed in Baer, 1991, pp. 83-84.
Pittsburgh Press v. Pittsburgh Commission on Human Relations,
413 U.S. 376 (1973).
Diaz v. Pan American World Airways, 442 F.2d. 385 (5th Cir.
Dothard v. Rawlinson, 433 U.S. 321 (1977).
UAW v. Johnson Controls Inc., 111 S.Ct. 1196, 1207 (1991).
Sara M. Evans and Barbara J. Nelson, Wage Justice: Comparable
Worth and the Paradox of Technocratic Reform, Chicago: U. Chicago
Press, 1989, pp. 24-26.
Evans and Nelson, pp. 32-41. The most successful pay equity case
was AFSCME v. State of Washington, 578 F.Supp. 846 (W.D. Wash.
1983). It was reversed by the Ninth Circuit Court of Appeals in 770 F.2d
1401 (9th Cir. 1985). See Mezey, pp. 99-107 for more on the legal convolutions.
Janet K. Boles, The Politics of the Equal Rights Amendment:
Conflict and the Decision Process, New York: Longman, 1979. Jane J.
Mansbridge, Why We Lost the ERA, Chicago; U. Chicago, 1986. New
resolutions have been introduced in each successive Congress. The House
voted on one of these on November 15, 1983, but it did not receive the
necessary two-thirds majority.
These were the Morrill Anti-Bigamy Act of 1862, 12 Stat.
501, the Edmunds Anti-polygamy Act of 1882, 22 Stat. 30, and the
Edmunds-Tucker Act of 1887, 24 Stat. 635. The latter annulled Utah laws
allowing illegitimate children to inherit property and revoked woman suffrage
in the Utah Territory, on the premise that it increased the voting strength
of Mormon husbands. Woman suffrage was restored by the Utah constitutional
convention of 1895; Utah entered the Union in 1896 as the third full suffrage
state. See Jean B. White, "Women's Place is in the Constitution:
The Struggle for Equal Rights in Utah in 1895" 42 Utah Historical
Quarterly, Fall 1974, pp. 344-369.
Eva R. Rubin, The Supreme Court and the American Family,
Westport, Conn.: Greenwood Press, 1986, pp. 12-13.
Social Security Act of 1935; 49 Stat. 620. Social Security
Amendments of 1967; 81 Stat. 821. Social Service Amendments of
1974; 88 Stat. 2337. Child Welfare Act of 1980; 94 Stat.
500. Omnibus Reconciliation act of 1981; 95 Stat. 357. Tax Equity
and Fiscal Responsibility Act of 1982; 96 Stat. 324. Child Support
Enforcement Amendments of 1984; 98 Stat. 1305.
1990 Congressional Quarterly Almanac, Washington, D.C.:
CQ Press, 1991, pp. 547-51.
CQ Weekly Report, Feb. 6, 1993, pp. 267-9.
Foreign Service Act (1980); 94 Stat. 2071. Central Intelligence
Agency Appropriations Act (1982); 96 Stat. 1142. Department of
Defense Appropriation Act (1982); 96 Stat. 718. Civil Service Spouse
retirement Equity Act (1984); 98 Stat. 3195. Retirement Equity
Act (1983); 98 Stat. 494. Tax Reform Act (1986); 100 Stat.
2085. FY87 Department of Defense Military Functions and Personnel Levels
Authorization Act (1985); 99 Stat. 583.
Social Security Amendments (1977); 91 Stat. 1509. Social
Security Amendments (1983); 97 Stat. 65.
Jay M. Zitter, "Modern Status of Rule that Husband is Primarily
or Solely Liable for Necessaries Furnished Wife", 20 American
Law Reports Fourth 196.
Condore v. Prince George's County, 289 Md. 516, 425 A.2d.
1011 (1981). Also, Schilling v. Bedford County Memorial Hospital,
225 Va. 539, 303 S.E.2d 905 (1983).
Trammel v. United States, 445 U.S. 40 (1980).
Griswold v. Connecticut, 381 U.S. 497 (1965).
Loving v. Virginia, 388 U.S. 1 (1967).
Levy v. Louisiana, 391 U.S. 68 (1968).
King v. Smith, 392 U.S. 309 (1967).
New Jersey Welfare Rights Organization v. Cahill, 411 U.S.
Planned Parenthood v. Danforth, 428 U.S. 53 (1976).
Moore v. City of East Cleveland, 431 U.S. 494 (1977).
Tribe, 1978, Chapter 13.
Schweiker v. Gray Panthers, 453 U.S. 34 (1981).
Mead, Margaret and Frances Balgley Kaplan, American Women: The
Report of the President's Commission on the Status of Women and Other
Publications of the Commission, New York: Charles Scriber's Sons,
1965, p. 49; my emphasis.