Women's Rights and the Limits of Constitutional Doctrine

AuthorJudith A. Baer
Published date01 December 1991
Date01 December 1991
Subject MatterArticles
Texas A&M
law of sexual equality provides an exception to almost
every generalization which can be made about the Supreme
Court during Warren Burger’s tenure as chief justice. The
Burger Court was less committed to protecting individual rights than
the Warren Court had been - except for their respective records on
women’s rights. The Burger Court was respectful of precendent-
except for this departure from sixty years of entrenched precedent.
The Burger Court was neither revolutionary nor counter-revolutionary-
except for the decade in which it transformed the constitutional law of
sex discrimination. If we examine doctrine alone, the Burger Court
emerges as the best judicial friend the women’s movement ever had.
But, then and since, the actual beneficiaries of actual cases include
more men than women. The results seem to support Nora Ephron’s
observation that &dquo;the major concrete achievement of the women’s move-
ment in the 1970s was the Dutch treat&dquo; (1983: 81). This article pro-
vides an explanation for the disappointing results of the new doctrine.
When Burger took office in 1969, the rule was that of Muller v.
Oregon in 1908: &dquo;Woman ... is appropriately placed in a class by
herself’ (p. 421). This principle, soon refined into &dquo;Sex is a valid basis
for classification,&dquo; effectively gave government a blank check for sex-
based discrimination (Kanowitz 1969: 154). Reed v. Reed, in 1971, put
the first dent in this doctrine. The case labeled an automatic state pref-
erence for males an &dquo;arbitrary legislative choice&dquo; (p. 76), forbidden by
even the most permissive reading of the Fourteenth Amendment. For
a few moments in the 1970s, the Court appeared to be on the verge of
Received: May 10, 1990
Revision Received: December 7, 1990
Accepted for Publication: January 4, 1991
Note: A version of this paper was delivered at the 1989 interim meeting of the Inter-
national Political Science Association Committee on Comparative Judicial
Research, Lund University, Lund, Sweden, 21-23 August. I gratefully acknowl-
edge Livija Johnson’s assistance in research.

declaring sex discrimination presumptively invalid, like its racial coun-
terpart (Frontiero v. Richardson, 1973). The justices retreated from that
position in 1976, but the resulting compromise did not restore the sta-
tus quo. Instead, Craig v. Boren ruled that &dquo;classifications by gender
must serve important governmental objectives and be substantially
related to these objectives&dquo; (p. 197). This standard remains the pre-
vailing test in sex discrimination cases.
It requires no special constitutional expertise to predict that the
Craig rule will result in more decisions striking down sex discrimina-
tion than the old rule did. The rulings bear out that prediction. On
the other hand, the new rule does not look as if it will always vindicate
the plaintiff; indeed, claimants have lost nearly as often as they have
won. But the new standard does not tell us many of the things that
both scholars and activists would like to know. Who
has benefited from
the rulings? What have they gained? Who really wins, and who loses?
Why? And what difference does it make?


The most recent case to rely on the Craig test was Heckler v.
Mathews, in 1984. In the twelve years and four months from Reed to
Mathews, the Court decided twenty-six sex discrimination cases under
the equal protection provisions of the Fifth and Fourteenth Amend-
ments. Craig, decided in December 1976, is the ninth of these cases
chronologically. Thus, it took the Court five years, and nine cases, to
settle on the relevant standard for sexual equality cases. In the six and
one half years between Craig and Mathews, the Court applied the Craig
standard in sixteen cases.
See Table 1. Since 1971, the Court has also decided on different grounds several
cases which are pertinent to sexual equality. These cases include Roe v. Wade
1973, and Webster v. Reproductive Health Services (1989); cases involving various
penalties on pregnancy, Cleveland Board of Education v. LaFluer, (1974), Geduldig v.
Aiello (1975), and Turner v. Department of Employment Security (1975); one case on
jury service, Taylor v. Louisiana (1975); cases upholding civil rights laws against
First Amendment claims, e.g. Pittsburgh Press v. Human Relations Commission (1973),
and Roberts v. U.S. Jaycees (1984); one case affirming, without opinion, a lower
court decision which invalidated a feminist-sponsored anti-pornography ordi-
nance on First Amendment grounds, Hudnut v. American Booksellers’ Association
(1986); and one case rejecting the due process claim of a natural father, Michael
H. v. Gerald D. (1989). Since the Court did not invoke sex discrimination doc-
trine in deciding these cases, I exclude them from the analysis. I also exclude the
many cases involving federal civil rights laws. See n. 3.

Of the twenty-six cases, the claimants won thirteen and lost thir-
teen. Seven of the thirteen winners were men; one, beer vendor Carolyn
Whitener in Craig, was suing on behalf of men; and the remaining five
were women. More men than women won-but more men lost, too.
Ten (more than three-fourths) of the losing plaintiffs were male. Women
have been more successful in constitutional cases than men have, but
there have been more male winners than female winners. Men have
instigated most of the sex discrimination cases which have reached the
Supreme Court. Whether or not we list Craig among the men’s cases,
account for roughly two-thirds of the cases. The new doctrine has
generated more male than female claims.

Restricting the analysis to cases decided after Craig, which estab-
lished the new rule, reveals patterns which are even more striking.
The women still did better-the Court decided in their favor in two
out of four cases, as opposed to five out of thirteen for the men - but
the numbers are so small that the difference must be interpreted cau-
tiously. Thirteen of the seventeen cases remaining involved men; only
four involved women. So, while half of the women’s cases came chron-
ologically before the new test is in place, and half after, more than
twice as many cases involving men were decided after Craig as before.
The ratio of men’s cases to women’s cases is now better than three to
one, rather than two to one. Chronology conveys an even sharper
impression. The last sexual equality case brought by a woman was
Kirchberg v. Feenstra, decided in March 1981. The last five cases all
involved men. These figures convey the impression that the new doc-
trine of sexual equality has served primarily as a device for men to
press their interests.2
The fact that more men than women are winning sexual equality
cases does not tell us much by itself. Meaningful analysis of these
cases must move beyond identifying winners and losers. We need to
Lower court rulings which rely on these precedents do not appreciably alter this
picture. While federal cases involve women more often than men, state cases
(and there are more of them) present the opposite pattern. The women’s federal
success record is about 50-50. The few male litigants have lost, with two recent
exceptions. Bachur v. Democratic National Party, 666 F.Supp. 763 (D. Md. 1987)
invalidated the segment of the "equal division rule" which limited the number of
convention delegates of one sex which any voter could select in the primary.
Michigan Road Builders Association v. Milliken (1987) overturned a state law provid-
ing for contract set-asides to women under the intermediate scrutiny rule, on the
grounds that no evidence of past discrimination existed. The Ninth Circuit made
just the opposite ruling about a similar program (
Associated General Contractors of
California v. San Francisco, 1987), but, in the light of several decisions in the spring
and summer of 1989, preferential treatment for women may be in as much dan-
ger as it is for racial minorities (
City of Richmond v. Croson; Wards Cove Packing v.
Martin v. Wilks; Patterson v. McLean Credit Union
I examined appellate
court rulings in the five largest states — California, New York, Texas, Florida, and
Pennsylvania-which contain about 35 percent of the country’s population. See,
e.g., In re Baby Girl M. (Cal. Sup. Ct. 1984); Michelle W
v. Ronald W
(Cal. Sup.
Ct. 1985); In the Matter of Andrew Peter H. T. (N.Y. App. Div. 1984); Matter of
Anthony F (Family Court, Bronx County, 1983); Matter of Adoption of Doe (Fla.
App. 1988). The state cases convey the impression that the primary beneficiaries
of the new doctrine, especially in the two largest states, have been single fathers.
They do not always win, but they account for a large share of the cases.

know what was won or lost; how important those benefits are; and
whose interests ultimately prevailed. We also need an idea of what
might have been won that has not been. Are women’s actual or poten-
tial claims being frustrated while men’s claims are accommodated?
Who were the real winners and losers? Not all legal victories for
men are defeats for women. Two Social Security cases decided in the
mid-1970s were brought by men, but...

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