THE REVOLUTION FOR WOMEN IN LAW AND PUBLIC POLICY
Eight states which were originally controlled by France or Spain -- California, Idaho, Texas, Washington, Arizona, Louisiana, Nevada, and New Mexico -- did not inherit the English common law, and thus followed rules developed in Continental Europe. Under their community property systems each spouse is considered owner of half of the earnings of the other, and all property acquired during marriage (other than gifts and inheritances) is jointly owned by both spouses, regardless of who paid for it or whose name it is in. However, the result was often the same because the husband was considered to be the head of the household and as such could manage and dispose of the community property as he wished.
In 1979 Louisiana became the last state to give both spouses the legal right to manage the community property. The case which led to its revocation is a good example of how little protection joint ownership really gave to a wife. Louisiana's "head and master" law permitted a husband the unilateral right to dispose of jointly owned community property without his wife's knowledge or consent. In 1974 Joan Feenstra had her husband incarcerated for molesting their minor daughter. To pay the attorney who represented him in this action he executed a mortgage on their home. Louisiana law did not require the husband to get his wife's permission to do this, or even to inform her of his action, although the house had been paid for solely out of her earnings. After the charges were dropped, a legal separation obtained and the husband left the state, the attorney foreclosed on the mortgage, and Joan Feenstra challenged the constitutionality of the statute in federal court. During legal proceedings Louisiana changed the law to permit equal control, but only prospectively. However, the Supreme Court declared that the original statute had been unconstitutional and invalidated the mortgage.6
Several of the common law property states have occasionally adopted some of the community property rules. In the 1940s several passed laws to allow one-half of a husband's earnings to be considered as his wife's income in order to obtain more favorable income tax rates for married couples. When the federal government created joint filing in 1948 so couples could split their income these states returned to common law rules.7 In the 1983 the Commission on Uniform State Laws proposed a Uniform Marital Property Act which created a modern form of community property. Wisconsin adopted this with modifications in 1984, making it the ninth real community property state.8
Family law varies considerably from state to state because it is not an area in which the Constitution permits the federal government to act and thus impose uniformity. Between 1917 and 1947, 33 Constitutional amendments were proposed to give Congress that authority, and 12 bills were introduced to provide for uniform marriage and divorce laws should such an amendment be ratified. None of these proposals were even voted on, let alone passed by Congress, and the idea faded. Nonetheless, states often follow each other's lead in changing their laws, and model laws are often proposed by nongovernmental entities which are adopted by several states. After Mississippi passed the first Married Women's Property Act in 1839 the other states passed similar acts throughout the Nineteenth century. These eventually removed the worst of women's legal disabilities. After Suffrage the National Woman's Party and the League for Women Voters proposed changes in the many state laws which affected men and women differently, though only a few were passed.
What was left prior to the beginning of the contemporary feminist movement in the mid sixties was something of a patchwork quilt of common law dictates and statutory changes. In most states married women did not have the legal right to retain their own name or maintain a separate domicile. Husbands remained liable for support of their families, but a wife was responsible if the husband had no property and was unable to support them, or himself. Paternal preference in guardianship and custody of children had gradually shifted to the standard of what was in the best interests of the child, though several states provided that, all else being equal, the mother should be preferred if the child was of tender years and the father if the child was old enough to require education or preparation for adult life. Some states gave husbands a right equivalent to that of "dower", in effect requiring his permission before a wife could sell her separate property, just as hers was necessary for him to completely convey his. Half of the community property states provided that a wife could control her own earnings. In virtually all states wives could contract and sue independently of their husbands, though some states still required his permission for a married woman to participate in an independent business, and a few denied wives the legal capacity to become a surety or a guarantor.9
Indeed in the 1920s, Miriam Ferguson, elected governor of Texas after her husband had been impeached, had to secure a court order relieving her of her marital disabilities so there would be no doubt about the legality of her acts as governor.10
And in the 1960s a married Texas woman successfully defended against the United States government's efforts to collect a judgment against her for an unpaid Small Business Administration loan on the grounds that her disability to bind her separate estate by contract had not been removed by court decree as required by Texas law.11
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 labor legislation.12
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
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.
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.... 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
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
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.
The 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 national origin26 and alienage.27 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 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.
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
interests which did not trigger strict scrutiny.33
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 Congress.34
Despite 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.
Three justices found the statute unconstitutional on the authority of
-- 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
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
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
the language of the post
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
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 out that
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 and raised."41
A 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
The 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 widowers,43
alimony for wives but not for husbands,44
welfare benefits to families with unemployed fathers but not unemployed mothers,45
and 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
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
The decision's sweeping language 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
Single-sex 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 bono attorney.
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 was denied.60
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 women".62
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
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
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 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 people.71
A 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
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.
The 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 political struggle.
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 them.
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
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.
Anti-abortion 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
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 necessary.
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
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
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
cannot be exactly measured, neither can the certain cost of overruling
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
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 before Reed.96 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 versa,98 and 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.
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# 2w
K8epancy between the platform committee vote and the delegate polls was spurious. He explained that many more moderates became delegates in 1988 as part of Bush's victory, but they were more likely to call themselves conservative because that was the most politically safe label. He thought that many who had worked for Bush in his 1980 race sat out 1984 but were back in 1988. On the other hand, several moderates on the Platform Committee, including John Easton of Vermont and Nancy Thompson of the District of Columbia, said they had made a particular effort to get on that committee and they were aware of others like them who had also done so, even though there was no co-ordinated plan to stack the committee.
Thompson had led the Republican Women's Task Force of the NWPC at the 1980 Republican convention. That year, as in 1976, the RWTF's sole concern was keeping the ERA in the Republican Party Platform. The RWTF did not want the two issues "to be confused" and felt they had the resources only for one. The decision to stick with the ERA reflected a delicate balancing act Republican feminists went through in the seventies as the party was taken over by the right. The party has always looked with suspicion on any kind of organized interest group within it in much the same way that labor unions have been hostile to anything approaching "dual unionism".
As feminism became identified with the Democratic Party, feminist organizations, such as NOW and the NWPC, were denounced as Democratic Party front groups. Because affiliation with the NWPC gave RWTF members the image of disloyalty to the Republican Party, they sought autonomy within the NWPC. When this proved unattainable, Thompson said, the RWTF "became defunct." She explained the NWPC's absence from the Platform hearings as an acknowledgement that it "has become identified with the Democratic Party" despite its preference for bipartisanship. "Irene Natividad felt her presence at the GOP Platform Committee was not appropriate," Thompson said. "She knew there were several people who would carry the water within the party."
These people operated as an informal network rather than through a co-ordinated effort. Indeed the activities of Republican feminists and other moderates at the Platform Committee closely resembled the "structurelessness" favored by radical feminists when the women's liberation movement began in the late sixties and early seventies. There was no agreed on program and no one assumed leadership. Spontaneity was the preferred mode of approach in promoting their positions. Rep. Nancy Johnson said she had drawn up several pro-choice amendments to different planks in the platform but shelved them when Chambers made her motion.
Despite their willingness to speak out on abortion and some other issues, the moderates were Republicans first and Bush supporters first of all. A minority report on the Chambers proposal was drawn up but withdrawn from circulation after only a few signatures were obtained because Bush operatives made it clear that they didn't want
minority reports or floor debates. Indeed, Marjorie Bell Chambers told Bush's Western regional representative Tom Hardwick that she wouldn't petition for a minority report before he could even ask her not to. The petition that was briefly circulated was prepared by others without her knowledge. Instead of a minority report, eleven moderates held a press conference on the final day of platform deliberations to express their pleasure at the completed document and their support for George Bush. This is a "progressive platform" they said, though abortion remained an issue on which they differed.
As Bush operatives made clear, the 1988 platform was essentially the one that had been drafted by the right in 1984, though a few new planks were added. The conventional wisdom was that the platform was Bush's concession to the right to keep them in line for the campaign. The fight over abortion was consistent with that interpretation. Bush operatives said the Vice President was happy with the Platform even though it differed from his own view. Bush's current position is that exceptions to a ban on abortion should be made for rape, incest and the life of the mother, and public funding should be provided for the latter.
Nonetheless, Gov. John Sununu of New Hampshire, the campaign's point-man on the Platform Committee, tried to persuade reporters that the Committee had been even handed in its handling of amendments. "We held off both sides who wanted to change the language on abortion and stuck with the '84 language," he said. "We fought it out then and agreed on this language." When asked, John C. Wilke, President of National Right to Life and Elaine Donally of Eagle Forum said they were quite pleased with the draft that had been presented to the Subcommittee and had not wanted any changes. Both organizations had representatives present throughout the Platform debate and many supporters on the Platform Committee.
Thompson dismissed the willingness of the Bush campaign to concede the platform to the right as any indication of its power within the campaign. "The Bush campaign is riddled with good women," she said. "While there is no longer an organized Republican feminist group, there is a network of good women." She felt these would be the people who influenced a Bush administration on women's issues and not the far right or Phyllis Schlafly.
Of all the planks in the Family section, the least controversial was the one which in fact was the most revolutionary. The final draft of the Platform devoted roughly two percent of its space to chilcided that local zoning laws could not discriminate against extended families.108 Most of these decisions relied on a modern form of "substantive due process" -- the same doctrine that was used to overturn state labor laws earlier in the Century. Just as prior Courts had read a "liberty to contract" into the Fourteenth Amendment's Due Process clause which pre-empted state regulation, this Court found a "right to privacy" in it which had the same effect.109 As then, this is a right that inures to individuals, not groups. Thus the Court's more recent decisions do not further "family rights" so much as the rights of individuals to make family arrangements suitable to them.
There are exceptions to this trend. Federal Medicaid regulations "deemed" a portion of a spouse's income available to an applicant in determining eligibility. This regulation applied even when the spouses were separated and any support was purely hypothetical. In 1981 the Supreme Court did not apply a Constitutional standard, but instead looked at the legislative history to determine what Congress had intended when it passed the Medicaid laws. It concluded that "deeming" was part of the legal scheme, even when no support was likely.110
The contemporary feminist movement finished the drive to remove discriminatory laws begun after Suffrage. It also altered public perceptions and public policy on the role of women to one which favors equality of opportunity and individual choice. This is reflected in the addition of "sex" to the pantheon of laws which prohibit discrimination in private conduct and in the Court decisions that recognize women's right to equal protection and due process. These changes, which largely occurred during the decade of the 1970s are nothing less than a revolution in public policy. As late as 1963, the President's Commission on the Status of Women cautioned that "[e]xperience is needed in determining what constitutes unjustified discrimination in the treatment of women workers."111
As is true of any revolution, the changes that were made created new problems in their wake. Once equal opportunity became a possibility, the fact that it by itself would not lead to equality became clearer. Essentially this policy means that women who are like men should be treated equally with men. It accepts as standard the traditional male life style, and that standard in turn assumes that one's primary responsibility should and can be one's job, because one has a spouse (or spouse surrogate) whose primary responsibility is the maintenance of house and family obligations. Women whose personal life style and resources permit them to fit these assumptions, could, in the absence of sex discrimination, succeed equally with men.
Most women cannot, however, because our traditional conception of the family, and women's role within the family, make this impossible. Women still bear the primary responsibility for home and child care whether or not they are married and regardless of what their spouse does. The typical woman has more tasks to perform in a typical day than a typical man, and thus less time. Couples who equalize family responsibilities, or singles who take them all on, pay a price for deviancy. And women who spend the greater part of their lives as dependent spouses often find their "career" ended by death or divorce with little to show for it.
What is necessary is a total social reorganization which abolishes institutionalized sex role differences and the concept of adult dependency. It needs to recognize the individual as the principle economic unit, regardless of what combinations individuals do or do not choose to live in, and to provide the necessary services for individuals to support themselves and help support their children. In pursuit of these goals, programs and policies need to make participation by everyone in the labor force to the full extent of their abilities both a right and an obligation. They should also encourage and facilitate the equal assumption of family responsibilities without regard to gender, as well as develop ways to reduce conflict between the conduct of one's professional and private lives. While transition policies are necessary to mitigate the consequences of adult dependency, the goal should be abolition of the sexual division of labor. They should not be ones which permanently transfer dependency from "breadwinners" (male earners) to society in general, nor should they be ones which encourage dependency for a major portion of one's life by extolling its benefits and minimizing its costs. Instead transitional policies should be ones which educate women to the reality that they are ultimately responsible for their own economic well-being, but are entitled to the opportunities to achieve it.
This too is not enough. Even while the revolution was in process, the feminist movement was generating new public policies to address problems not solved by the mere removal of discriminatory laws and practices. The pervasiveness of violence, the degradation of pornography and the lack of affordable, available child care are burdens particularly born by women which equal opportunity programs do not address. As women moved into positions of power, feminist inquiry disclosed new or hidden discriminations, such as the "glass ceiling" or inadequate research into women's health needs. As the family become open to public inspection a host of problems which more heavily affected women, such as incest, sexual abuse and domestic violence, became apparent. As science created new ways of reproducing it compelled reconsideration of the concept of motherhood. And as people diversified their ways of living together, the nature of the family was questioned.
Not all of the new problems can be mitigated by changes in law and public policy. But many can be. As the consequences of the legal revolution ripples throughout society, one task will be to identify where the law can be a useful tool for more social change and to devise appropriate policies to achieve it.