You've come a long way, baby: Rehnquist's new approach to pregnancy discrimination in Hibbs.

AuthorSiegel, Reva B.
PositionLooking Backward, Looking Forward: The Legacy of Chief Justice Rehnquist and Justice O'Connor

INTRODUCTION I. REHNQUIST, THE EQUAL RIGHTS AMENDMENT, THE NEW RIGHT, AND THE FAMILY II. REHNQUIST' S DECISION IN HIBBS III. THE REACH OF HIBBS: REMEDYING DISCRIMINATION AGAINST "MOTHERS AND MOTHERS-TO-BE". IV. HIBBS, GEDULDIG, AND CASEY CONCLUSION INTRODUCTION

Over the years I have written more in criticism of Chief Justice Rehnquist's Fourteenth Amendment opinions than in praise of them. (1) This Article marks a departure. It offers an appreciation of Rehnquist's last sex discrimination opinion, Nevada Department of Human Resources v. Hibbs. (2) In titling the Article "You've Come a Long Way, Baby," I refer not to the big beat album, (3) nor to the cigarette advertising slogan, (4) but instead to a frequent refrain of the 1970s women's movement. (5) William Rehnquist was an opponent of the Equal Rights Amendment (ERA) while serving in the Nixon Justice Department--and, more than any other Nixon appointee, a vocal critic of the Court's sex discrimination jurisprudence in his first decade on the Court. (6) Any reader of these early Rehnquist sex discrimination opinions, or Rehnquist's more recent opinions restricting Congress's power to enforce the Fourteenth Amendment, (7) surely would not have predicted that he would conclude his time on the bench writing a pathbreaking opinion upholding provisions of the Family and Medical Leave Act (FMLA) (8) as a valid exercise of Congress's Section 5 power. Hibbs held that Congress could enact provisions of the FMLA entitling eligible employees to take up to twelve weeks of unpaid leave annually for certain enumerated family care reasons as a congruent and proportional remedy for a pattern of state action violating the Equal Protection Clause.

In what follows, I show the "long way" Rehnquist traveled, from his early criticism of the ERA and first sex discrimination opinions to Hibbs--an opinion that seems to endorse an understanding of sex discrimination from which Rehnquist dissented in his early years on the bench. Others have offered explanations for Rehnquist's surprising decision to join and write Hibbs as he did. I consider in passing some accounts of the concerns that might have moved Rehnquist to write Hibbs, but, in the end, my object is less to explain than to mark the distance Rehnquist traveled over the course of his tenure on the Court. The actual motivations for the Hibbs decision will stay shrouded in mystery, at least for some long time to come. For purposes of this Article, I am prepared to treat Rehnquist's change in perspective as the nation's.

Rather than give an account of Rehnquist's motives for writing Hibbs, I focus instead on Hibbs's interpretation of the Equal Protection Clause. In the course of demonstrating that the FMLA is appropriate legislation to enforce the Equal Protection Clause as the Court has interpreted it, Rehnquist explains the reach of the Court's equal protection cases differently than his earlier sex discrimination opinions do. Hibbs consolidates the meaning of the Court's sex discrimination decisions in new ways. Hibbs characterizes as sex stereotypes judgments about "mothers and mothers-to-be" (9) that for much of the nation's history were deemed reasonable and holds that state action premised upon such stereotypes denies women equal citizenship in violation of the Fourteenth Amendment. Hibbs is the first Supreme Court opinion to recognize that laws regulating pregnant women can enforce unconstitutional sex stereotypes, and so introduces an important new understanding of when discrimination on the basis of pregnancy is discrimination on the basis of sex under Geduldig v. Aeillo. (10) As I show, Geduldig and Hibbs can be read together: where regulation of pregnant women rests on sex-role stereotypes, it is sex-based state action within the meaning of the Equal Protection Clause. (11) Alongside Planned Parenthood of Southeastern Pennsylvania v. Casey, (12) Hibbs opens the door to the next generation of sex discrimination cases.

  1. REHNQUIST, THE EQUAL RIGHTS AMENDMENT, THE NEW RIGHT, AND THE FAMILY

    Rehnquist began his career as an opponent of the Equal Rights Amendment with what can most charitably be described as skeptical views of the women's movement. The Nixon administration, in which he served, supported the ERA, ambivalently. (13) As Assistant Attorney General, William Rehnquist testified in favor of the ERA just before his nomination to the Court, expressing equivocal support for the Amendment. Rehnquist reported that his administration "wholeheartedly support[ed] the goal of establishing equal rights for women" and observed that the President had endorsed the Equal Rights Amendment in 1968. (14) But when asked whether he thought that a federal constitutional amendment was necessary to implement the federal policy against discrimination on the basis of sex that he had endorsed, Rehnquist answered, "No, I don't. I think one could do it by statute." (15) In this reply, Rehnquist was expressing the Nixon Administration's support for an omnibus sex equality statute then under consideration by the House Judiciary Committee, but he also was endorsing the view espoused by many ERA opponents that the ERA was an unnecessary (and possibly dangerous) constitutional amendment that pursued aims that could be accomplished by federal legislation or by judicial interpretation of the existing Constitution. (16) Rehnquist made clear to the Judiciary Committee that his support for the ERA reflected the views of the Nixon administration and that his own views of the matter might differ. (17)

    Differ they did. In an internal Justice Department memorandum authored in 1970 (made public during his confirmation hearings as Chief Justice in 1986 (18)), Rehnquist advised Leonard Garment, a special consultant to President Nixon, that the ERA posed a grave threat to the family. The memo warned that the "consequences of a doctrinaire insistence upon rigid equality between men and women cannot be determined with certainty, but the results appear almost certain to have an adverse effect on the family unit as we have known it," characterizing the "overall implication" of the ERA as "nothing less than the sharp reduction in importance of the family unit, with the eventual elimination of that unit by no means improbable." (19) Suggesting that the ERA might invalidate common law rules for determining the domicile of husband and wife, Rehnquist warned that the ERA threatened to transform "holy wedlock" into "holy deadlock." (20) He was blunt in expressing his mistrust of the ERA's supporters:

    I cannot help thinking that there is also present somewhere within this movement a virtually fanatical desire to obscure not only legal differentiation between men and women, but insofar as possible, physical distinctions between the sexes. I think there are overtones of dislike and distaste for the traditional difference between men and women in the family unit, and in some cases very probably a complete rejection of the woman's traditionally different role in this regard. (21) In muted ways, these views shaped Rehnquist's testimony before the Judiciary Committee. Rehnquist expressed his concern that the ERA would eliminate "women's traditionally different role" as he warned the Judiciary Committee that the ERA might abolish a husband's traditional duty to support his wife, asserting that "the proposed amendment would, at least where a wife is not bearing or rearing children, prevent her from suing for support when she is able to support herself" and observing that the ERA might even "require a woman to use child-care facilities and work before she could demand support from her husband." (22)

    As Rehnquist was testifying before Congress, conservatives were beginning to focus on the family as a site of political mobilization. In December of 1971, President Nixon acceded to pressure from Pat Buchanan, William F. Buckley, and James M. Kilpatrick and decided to veto a federal childcare program (23) proposed by the women's movement, (24) whose development his administration had, with qualification, supported. (25) Nixon's veto message sounded themes expressed in Rehnquist's opposition to the ERA, voicing concern that federal involvement in child care "would ... alter[] the family relationship" and objecting that "for the Federal Government to plunge headlong financially into supporting child development would commit the vast moral authority of the National Government to the side of communal approaches to child rearing over against [sic] the family-centered approach." (26) Phyllis Schlafly's first published attack on the ERA in February of 1972 voiced these same themes more aggressively, denouncing the women's movement as "anti-family, anti-children, and pro-abortion":

    Women's lib is a total assault on the role of the American woman as wife and mother, and on the family as the basic unit of society. Women's libbers are trying to make wives and mothers unhappy with their career, make them feel that they are "second-class citizens" and "abject slaves." Women's libbers are promoting free sex instead of the "slavery" of marriage. They are promoting Federal "day-care centers" for babies instead of homes. They are promoting abortions instead of families. (27) Like Rehnquist, Schlafly warned that the ERA threatened to eliminate the "family unit" and the security and status of "women's traditionally different role." As Schlafly put it in The Power of the Positive Woman, "Elimination of the role of 'mother' is a major objective of the women's liberation movement. Wives and mothers must be gotten out of the home at all costs to themselves, to their husbands, to their children, to marriage, and to society as a whole." (28) The private and public concerns Rehnquist voiced about the ERA sounded themes that conservatives were beginning to perfect into a rallying cry against the amendment.

    Rehnquist carried this determination to protect the family from the women's movement...

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