Sex Discrimination

Author:Ruth Bader Ginsberg

Page 2389

The application of constitutional principle to government action that distinguishes on the basis of sex is a late-twentieth-century development. From the 1860s until 1971, the record remained unbroken: the Supreme Court rejected every effort to overturn sex lines in the law. Equalizing the rights, responsibilities, and opportunities of men and women was not considered a judicial task; without offense to the Constitution, women could be kept off juries and barred from occupations ranging from law to bartending. Women could also be "protected" from long hours, night work, and hazardous jobs, as in MULLER V. OREGON (1908), but protection of this order limited women's opportunities and relied upon the notion that a woman "looks to her brother and depends upon him."

The Court explained its position in Fay v. New York (1947). The NINETEENTH AMENDMENT'S ratification in 1920 gave women the vote, but only that; in other respects, the Constitution remained an empty cupboard for sex equality claims. Nearly a decade and a half later, in Hoyt v. Florida (1961), a unanimous bench reaffirmed the traditional view. The Court held that a volunteers-only system for females serving on juries encountered no constitutional shoal; it was rational to spare women from the obligation to serve

Page 2390

in recognition of their place at the "center of home and family life."

Pervasive social changes following WORLD WAR II undermined the Hoyt assumptions. That period saw unprecedented growth in women's employment outside the home, a revived feminist movement, changing marriage patterns, and a decline in necessary home-centered activity. Expansion of the economy's service sector opened places for women in traditional as well as new occupations. Curtailed population goals, facilitated by more effective means of controlling reproduction, and extended lifespans counted as well among important ingredients in this social dynamic. These last two developments created a setting in which the typical woman, for the first time, was experiencing most of her adult years in a household not dominated by child care requirements. Columbia economics professor Eli Ginzberg appraised the sum of these changes as "the single most outstanding phenomenon of our century." The BURGER COURT, not noted for its activism in other areas, responded.

Through the 1960s, the Supreme Court had explained its EQUAL PROTECTION rulings in terms of a two-tier model. Generally, challenged legislation was ranked at the lower tier and survived judicial inspection if rationally related to a permissible government objective. Exceptional cases, ranged on the upper tier, involved FUNDAMENTAL RIGHTS (voting is a prime example) or SUSPECT CLASSIFICATIONS (race is a paradigm). Review in these exceptional cases was rigorous. To survive inspection, the legislative objective had to be compelling, and the classification, necessary to its accomplishment. (See STRICT SCRUTINY; COMPELLING STATE INTEREST.)

Equal protection adjudication in gender discrimination cases prompted "in between" standards. As the 1970s wore on, the STANDARD OF REVIEW for sex-based classification inched up toward the higher tier. The process commenced with Reed v. Reed (1971). A unanimous Court held that an Idaho estate administration statute, giving men preference over similarly situated women, denied would-be administrator Sally Reed the equal protection of the laws. Reed attracted headlines; it marked the first solid break from the Supreme Court's consistent affirmation of government authority to classify by sex. The terse Reed opinion acknowledged no departure from precedent, but Court-watchers recognized something new was in the wind.

Less than a year and a half after the laconic Reed decision, the Court came within one vote of declaring sex a "suspect" category. In FRONTIERO V. RICHARDSON (1973) the Justices held 8?1 that married women in the uniformed services were entitled to the same fringe benefits as married men. Under the laws declared unconstitutional, men received a housing allowance and health care for their civilian wives automatically; women received these family benefits only if they supplied over three-fourths of the couple's support.

Four of the Justices ranked sex a suspect classification. Justice LEWIS F. POWELL, concurring, articulated a prime reservation of the remaining five Justices: our eighteenth-and nineteenth-century Constitution-makers had evidenced no concern at all about the equality of men and women before the law. The Court must tread lightly, Justice Powell cautioned, when it enters the gray zone between CONSTITUTIONAL INTERPRETATION, a proper judicial task, and constitutional amendment, a job for the people's elected representatives.

No fifth vote has emerged for explicit placement of sex at the top tier of equal protection analysis, although the Court has repeatedly acknowledged that it applies a standard considerably more exacting than the lower tier RATIONAL BASIS test. If a classification based upon gender is to withstand constitutional challenge, the defender of the sex criterion must establish what the Court in Kirchberg v. Feenstra (1981) called "exceedingly persuasive justification"; the sex-based distinction will be condemned unless it "substantially furthers an important government interest." In MISSISSIPPI UNIVERSITY FOR WOMEN V. HOGAN (1982) the Court noted that it was unnecessary to "decide whether classifications based upon gender are inherently suspect," for the classification challenged there could not survive even intermediate tier scrutiny. If the Court continues to review categorization by gender with the rigor displayed in many of its 1973?1982 decisions, however, the "suspect" seal may eventually be placed on accumulated precedent.

Despite the absence of a majority opinion, the 8?1 Frontiero JUDGMENT was a notable way-paver for challenges to statutes that openly disadvantage or denigrate women. First, the Court did not invalidate the flawed legislation; it repaired it. Congress provided benefits for the military man's family; the Court, in effect, extended the same benefits to families in which the service member was female. Second, in contrast to the statute that figured in Reed?a nineteenth-century hangover repealed prospectively months before the Court heard Sally Reed's appeal?post-World War II legislation was at issue in Frontiero. Most significantly, Frontiero invalidated the type of gender line found most frequently in federal and state legislation. Wives were deemed dependent regardless of their own economic circumstances. Husbands were ranked independent unless they contributed less than one-fourth of the couple's support. In disallowing resort to this particular stereotype the Court set the stage for its subsequent disallowance of similar stereotypes in other settings.

Since Frontiero, with few exceptions, the Court has

Page 2391

regularly overturned legislation explicitly invoking a male/ female criterion and perceived by the Justices as denigrating women. A Utah statute that required a parent to support a son until age twenty-one but a daughter only until eighteen was struck down in Stanton v. Stanton (1975). Using DUE PROCESS analysis, the Court invalidated laws excluding all women from jury duty save those who volunteered (TAYLOR V. LOUISIANA, 1975) or chose not to opt out (Duren v. Missouri, 1979). In Kirchberg v. Feenstra (1981) a unanimous bench condemned Louisiana's "head and master" law, which gave the husband alone a unilateral right to dispose of property jointly owned with his wife.

Even a noncontributory welfare program?the type of governmental largess generally left untouched by the judiciary?has been revised by Court decree to eliminate the law's discrimination against women. Congress had provided for public assistance benefits to families where dependent children had been deprived of parental support because of the father's unemployment; no benefits were allowed when mother, rather than father, qualified as the unemployed parent. "Congress may not legislate "one step at a time' when that step is drawn along the line of gender, and the consequence is to exclude one group of families [those in which the female spouse is a wage earner] altogether from badly needed subsistence benefits," Justice HARRY BLACKMUN concluded for a Court unanimous on the constitutional issue in CALIFANO V. WESTCOTT (1979). Although the Justices divided 5?4 on the appropriate remedy (the majority extending the benefit to families of unemployed mothers, the dissenters preferring to invalidate the entire program), all subscribed solidly to the equal protection ruling.

In 1837 Sarah Grimke made this plea: "I ask no favors for my sex, I surrender not our claim to equality. All I ask of our brethren, is that they ? take their feet ? off our necks.?" Does the equal protection principle operate with the same bite when men rather than women are the victims of explicit gender-based discrimination? Constitutional doctrine after Reed has evolved, with some insecurity, through three stages. In the first, statutes ostensibly favoring women were upheld if they were seen as "compensatory," even if that rationalization was entirely post hoc. Then the Court recognized more consistently that gender-based classifications rooted in...

To continue reading