Sex Discrimination

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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 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 Frontierojudgment 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 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 "romantic paternalism" reinforce stereotypes and perpetuate anachronistic social assumptions that confine women's opportunities. In the third stage, the Court attempted a reconciliation of these two strands of doctrine: a classification that favors women can survive an equal protection attack, but only if it reflects a conscious legislative choice to compensate for past, gender-based inequities.

In two first-stage decisions the Court upheld laws that appeared to favor women. Kahn v. Shevin (1974) involved a $15-per-year state property tax saving for widows (along with the blind and the totally disabled) but not widowers. The classification, as the Court appraised it, was genuinely "benign"—it helped some women and harmed none. Following on the heels of Kahn, the Court ruled, in Schlesinger v. Ballard (1975), that it was not a denial of equal protection to hold a male naval officer to a strict "up or out" (promotion or discharge) system, while guaranteeing a female officer thirteen years of duty before mandatory discharge for lack of promotion.

Kahn and Ballard were greeted by some in a Panglossian manner. The decisions could be viewed as offering women the best of both worlds—a High Court ready to strike down classifications that discriminate against females, yet vigilant to preserve laws that prefer or favor them. But this analysis was uncritically optimistic. The classification attacked in Kahn was barely distinguishable from other products of paternalistic legislators who had regarded the husband more as his wife's guardian than as her peer. And in Ballard, neither contender challenged the anterior discrimination that accounted, in large measure, for the navy's promoting men more rapidly than women—the drastically curtailed opportunities and assignments available to navy women.

Sex as a proxy for need, or as an indicator of past discrimination in the marital unit, is a criterion too gross to survive vigorous equal protection scrutiny. The Court eventually demonstrated its appreciation that discrimination by gender generally cuts with two edges, and is seldom, if ever, a pure favor to women. A young widower whose wage-earning wife had died giving birth to the couple's son brought suit in Weinberger v. Wiesenfeld (1975). The unanimous Court declared unconstitutional the social security act's provision of a mother's benefit for the caretaker of a deceased wage-earner's child. As in Frontiero, the remedy was extension of the benefit in question to the entire class of similarly situated individuals, males as well as females. In effect, the Wiesenfeld judgment substitutes functional description (sole surviving parent) for the gender classification (widowed mother) employed in the statute.

The government had urged that the sex differential in Wiesenfeld operated "to offset the adverse economic situation of women." But the Court read the legislative history closely and rejected "the mere recitation of a benign, compensatory purpose" as a hindsight apology for laws in fact based on twin assumptions: that man's primary place is at work, woman's at home; and that a gainfully employed woman is a secondary breadwinner whose employment is less crucial to her family than her husband's.

Wiesenfeld's focus on actual legislative purpose set a penetrating standard for sex classifications defended as "benign" or "compensatory." Gender classifications superficially favoring women and affecting interests ranging from the purchase of beer to attendance at a nursing school have accordingly been struck down.

craig v. boren (1976) held unconstitutional an Oklahoma law allowing young women to purchase 3.2 percent beer at age eighteen, but requiring young men to wait until age twenty-one. Orr v. Orr (1979) declared violative of equal protection a statute that required husbands, but never wives, to pay alimony. califano v. goldfarb (1977) rejected social security classifications qualifying a widow for survivor's benefits automatically, a widower only upon proof that his wife supplied three-fourths of the couple's support.

The 4–1–4 judgment in Goldfarb, in contrast to the Wiesenfeld decision on which Goldfarb built, was a cliffhanger. The plurality opinion concentrated on discrimination against women as breadwinners. Justice john paul stevens, who cast the swing vote in favor of widower Goldfarb, focused on the discrimination against the surviving male spouse. Why this discrimination against a class of men? Like the plurality, Justice Stevens refused to accept the government's hindsight compensatory justification for the scheme. Congress, the record suggested, had ordered different treatment for widows and widowers out of longstanding "habit"; the discrimination encountered by widower Goldfarb was "merely the accidental by-product of [the legislators'] traditional way of thinking about females." Four members of the Court, in dissent, repeated a long rehearsed argument: the sex-based classification accurately reflects the station in life of most women, it operates benignly in women's favor, and it is administratively convenient. In 1980, however, the Court adhered to Goldfarb with a clearer (8–1) majority, in wengler v. druggists mutual insurance co.

The most emphatic reaffirmation of Wiesenfeld 's skeptical view of benign gender-based classification came in 1982, one day after expiration of the extended deadline for ratification of the proposed equal rights amendment. The Court decided, 5–4, in Mississippi University for Women v. Hogan, that Mississippi's single-sex admissions policy for a nursing school failed to meet the heightened standard of review. Justice sandra day o'connor, who, a century earlier under bradwell v. illinois (1873), could have been barred from practicing law without offense to the Constitution, wrote the majority opinion.

Challengers in most of the cases just surveyed contended against gross assumptions that females are (and should be) concerned primarily with "the home and the rearing of the family," males with "the marketplace and the world of ideas" (Stanton v. Stanton, 1975). The complainants did not assail the accuracy of these assumptions as generalizations. Rather, they questioned each law's erroneous treatment of men and women who did not fit the stereotype, and the fairness of gender pigeonholing in lieu of neutral, functional description. The traditional legislative slotting, they argued, amounted to self-fulfilling prophecy. A Court that in 1948, in goesaert v. cleary, had declared "beyond question" the constitutionality of legislation "drawing a sharp line between the sexes," was receptive in the 1970s to argument to which it would not "give ear" a generation earlier.

The Court has left a narrow passage open, however, for compensatory legislation that does not rest on traditional role-typing. In Califano v. Webster (1977) the Court distinguished from habitual categorization by sex a law designed, at least in part, to ameliorate disadvantages women experienced. A social security benefit calculation, effective from 1956 to 1972, established a more favorable formula for retired female workers than for retired male workers. The legislative history indicated that this scheme, unlike those in Wiesenfeld and Goldfarb, had been conceived in light of the discrimination commonly encountered by gainfully employed women, specifically, depressed wages for "women's work" and the early retirement that employers routinely forced on women but not on men. While tilting toward a general rule of equal treatment, the Websterper curiam opinion approves genuinely compensatory classifications that are adopted for remedial reasons rather than out of prejudice about "the way women are," and are trimly tailored in scope and time to match the remedial end.

Neutrally phrased laws that disproportionately affect one sex have not attracted the heightened scrutiny generally accorded explicit gender-based classifications that serve as a proxy for a characteristic or condition susceptible of individual testing. Citing racial discrimination precedent, the Court has held that facially neutral classifications that disproportionately affect members of one sex are not necessarily sex-based. The Court has not yet considered in a constitutional setting whether official lines may be drawn based on actuarial differences, but statutory precedent indicates the answer will be "no."

"[G]ood intent or absence of discriminatory intent" does not immunize an employment practice from the equal opportunity requirement of Title VII of the civil rights act of 1964, which now covers both public and private employment. griggs v. duke power co. , a notable 1971 Title VII race discrimination decision, so held. But in washington v. davis (1976) the Court held the Griggs principle inapplicable to race discrimination claims invoking the Constitution rather than Title vii. personnel administrator of massachusetts v. feeney (1979) expanded the Washington v. Davis reasoning. Feeney involved an assault on exorbitant veterans' preferences in civil service as impermissibly gender-biased. Helen Feeney challenged the nation's most extreme veterans' preference—an absolute lifetime preference Massachusetts accorded veterans in a range of civil service positions. The preference had "a devastating impact upon the employment opportunities of women"; it operated to reserve top jobs for a class almost exclusively male. The purpose? Purely to aid veterans, surely not to harm women, Massachusetts (and the United States, amicus curiae) maintained. Of course, to become a veteran one must be allowed to serve her country, and the military had maintained highly restrictive quotas and more exacting qualification standards for females. When litigation in Feeney commenced, over ninety-eight percent of Massachusetts veterans were male.

Feeney sought accommodation of the conflicting interests—aiding veterans and opening to women civil service employment beyond the "pink-collar" ghetto. The typical "points-added" preference, she said, was not at issue, only the extreme arrangement Massachusetts had legislated, which placed a veteran with a minimum passing grade ahead of a woman with a perfect score, and did so for each promotion as well as for initial hiring. A preference so large, she argued, took too much from Pauline to pay Paul.

The Court rejected the proffered distinction between moderate and exorbitant preferences. The "discriminatory purpose" hurdle could not be surmounted absent proof that the Massachusetts preference "was originally devised or subsequently re-enacted because it would accomplish the collateral goal of keeping women in a stereotypic and predefined place in the Massachusetts Civil Service." The lawmaker must want, not merely anticipate, the consequences. Alone, disparate impact on one sex, however "devastating" and "inevitable," does not violate equal protection.

The discriminatory purpose requirement, as elaborated in Feeney, leaves a slack rein for legislative choices with foreseeable but undesigned adverse effects on one of the sexes. Suppose, for example, that the social security payments at issue in Wiesenfeld or Goldfarb had turned not on sex but on the deceased wage-earner's status as the family's principal breadwinner. In most families, husbands would fit that neutrally phrased description, wives would not. May Congress, without violating equal protection, resort to a "principal breadwinner" standard in social welfare legislation in the interest of fiscal economy? Would use of a "principal breadwinner" criterion survive constitutional review as a measure enacted "in spite of," rather than "because of" its practical effect—its reduction of the value to the family of the wife's earnings? The only, uncertain, guide is an obiter dictum from Feeney, in which the Court accepted that "covert" sex classifications, ostensibly neutral but in fact a pretext for sex-based discrimination, are vulnerable to equal protection attack.

Can actuarial differences, for example, in life expectancies, health records, or accident experiences, provide constitutionally valid grounds in any context for gender-based categorizations? Sex averaging has not fared well in post-1970 constitutional litigation. Thus, Reed v. Reed and Frontiero v. Richardson rejected as a basis for government action the generalization that "men [are] as a rule more conversant with business affairs than women"; Craig v. Boren, the fact that more 18–20-year-old males than females drink and drive; Orr v. Orr (1979), the reality that wives far more often than husbands "need" alimony. Legislation resting on characteristics, attributes, habits, or proclivities of the "typical man" or "typical woman" have been rejected for two reasons: they reinforce traditional restrictive conceptions of the social roles of men and women; and they burden members of one sex by employing gender as a proxy for a characteristic susceptible to individual testing or at least capable of sex-neutral description. But actuarial tables, their defenders point out, are used in situations in which individual testing is not feasible. The Court has not yet explicitly confronted actuarial tables in a constitutional context, but a Title VII decision may indicate the position the Court will take in an equal protection challenge to government action.

Los Angeles Department of Water and Power v. Manhart (1978) raised the question whether women could be required to pay more currently in order to receive monthly benefits on retirement equal to those received by men. The majority held the two-tier charges inconsistent with Title VII's prohibition of sex-based classification. All recognized in Manhart that the statement, "on the average, women live longer than men," is accurate, and that an individual's lifespan generally cannot be forecast with precision. But the majority refused to countenance a break from the general Title VII rule against sex averaging. Unquestionably, for pension purposes, women destined to die young are burdened by placement in an all-female class, and men destined to live long are benefited by placement in an all-male class. Moreover, Justice Stevens suggested for the majority, the group insurance context may not be an ideal setting for urging a distinction other than age: "To insure the flabby and the fit as though they were equivalent risks may be more common than treating men and women alike; but nothing more than habit makes one "subsidy' seem less fair than the other." The Court adhered to Manhart, when invited to reconsider, or contain the holding, in Arizona Governing Committee v. Norris (1983).

Are women to have the opportunity to participate in full partnership with men in the nation's social, political, and economic life? Kenneth L. Karst has identified this overarching question, in its constitutional dimension, as one ripe for synthesis in the final quarter of the twentieth century. The synthesis envisioned would place within an encompassing sex equality framework cases involving explicit male/female classification as well as cases on reproductive autonomy and pregnancy-linked regulation. That synthesis, however, may well depend on the clarity of directions from the political arena. The Court has treated reproductive choice cases under a "personal autonomy," not a "sex equality" rubric, and it has resisted argument that separate classification of pregnant women is sex-based.

In a bold 1973 ruling, roe v. wade, the Court struck down an anti-abortion law as unwarranted state intrusion into the decision of a woman and her doctor to terminate a pregnancy. Roe v. Wade has been typed aberrational—an extraordinarily activist decision issued from a bench reputedly deferential to legislative judgments. It bears emphasis, however, that the Court bypassed an equal protection argument presented for the female plaintiffs. Rather, the Court anchored stringent review to a concept of personal autonomy derived from the due process guarantee. Two decisions, particularly, had paved the way: griswold v. connecticut (1965), which held inconsistent with due process Connecticut's ban on use of contraceptives even by married couples, and eisenstadt v. baird (1972), which extended Griswold to strike down Massachusetts' prohibition on sales of contraceptives except to married persons by prescription.

Some speculated that Roe v. Wade and a companion 1973 decision, Doe v. Bolton, were motivated, at least in part, by concerns about unwanted children born into impoverished families. But in maher v. roe (1977) the Court indicated that such speculations had been mistaken. The Court declined to extend the 1973 rulings to require state support for an indigent woman's elective abortion.

The impoverished women, on whose behalf constitutional claims to public assistance for abortion were pursued, relied primarily on the equal protection principle. They maintained that, so long as government subsidized childbirth, it could not withhold subsidy for abortion, a far less expensive, and, at least in the first trimester, less risky procedure. If government pays for childbirth but not abortion, then, the Maher plaintiffs argued, government intrudes upon a choice Roe v. Wade said the state must leave to doctor and patient. The Court, however, distinguished government prohibition from government support. Though the state could not bar access to a woman able to pay for an abortion, it was not required to buy an admission ticket for the poor woman. Rather, government could pursue a policy of encouraging childbirth (even if that policy would affect only the poor) by refusing Medicaid reimbursement for nontherapeutic abortions and by banning such abortions in public hospitals. Though widely criticized in the reproductive-choice context, the distinction between government stick and government carrot had been made in other settings to which the Court referred in its 1977 ruling.

The Maher logic was carried further in harris v. mcrae (1980). The federal law at issue excluded even medically needed abortions from a medical benefits program. In holding, 5–4, that this exclusion violated neither the due process nor the equal protection clause, the Court reiterated the distinction drawn in Maher: though the government may not proscribe abortion, it need not act affirmatively to assure a poor woman's access to the procedure.

Following after the intrepid 1973 abortion decisions, the later public-funding-of-abortion rulings appear incongruous. The Roe v. Wade decision was not easy to reach or explain. Social and economic conditions that seem irreversible, however, suggest that the ruling made by the Court in 1973 will remain with us in the long run, while the later dispositions may eventually succumb to a different legislative view of state and national policy, and of the centrality of choice with respect to childbearing to a woman's control of her life's course.

When does disadvantageous treatment of pregnant workers operate to discriminate on the basis of sex? High Court decisions on that question display less than perfect logic and consistency.

School teachers may not be dismissed or placed on forced leave arbitrarily at a fixed stage in pregnancy well in advance of term. Such a rule conflicts with due process, the Court ruled in cleveland board of education v. lafleur (1974). Similarly invoking due process, the Court held in Turner v. Department of Employment Security (1975) that pregnant women willing and able to work may not be denied unemployment compensation when jobs are closed to them. It is unlawful under Title VII, as interpreted by the Court in Nashville Gas Co. v. Satty (1977), for an employer to deprive women disabled by pregnancy of accumulated job-bidding seniority when they return to work.

But Geduldig v. Aiello (1974) held that a state-operated disability income protection plan could exclude pregnancy without offense to the equal protection principle. And in an analogous Title VII case, General Electric Company v. Gilbert (1976), the Court held that a private employer's exclusion of pregnant women from disability coverage did not discriminate on the basis of sex because all "nonpregnant persons," women along with men, were treated alike.

Lawyers may attempt to square the apparently contradictory constitutional decisions by referring to the different principles employed in the Court's analyses—equal protection in Aiello, due process in both LaFleur and Turner. But the particular due process theory of irrebuttable presumptions the Court pressed into service in LaFleur has lost favor with the Justices in other contexts. A factor not fully acknowledged in the written opinions, and based more on the Justices' experience than on legal analysis, may account for the divergent responses. Perhaps the able pregnant woman seeking only to do a day's work for a day's pay, or the woman seeking to return to her job relatively soon after childbirth, is a credible figure to the Court, while the woman who asserts she is disabled by pregnancy is viewed with suspicion. Is she really incapacitated physically or is she malingering so that she may stay "where she belongs"—at home tending baby?

With respect to Title VII, Congress in 1978 simplified the judicial task by prospectively overruling General Electric. It amended the statute to say explicitly that classification on the basis of sex includes classification on the basis of pregnancy. The Court gave the amended statute a cordial reception in Newport News Shipbuilding of Drydock Co. v. EEOC (1983). The congressional definition placed in Title VII is not controlling in constitutional adjudication, but the Court may be stimulated by the legislature's action to revise its view, expressed in Aiello and General Electric, that singling out "pregnant persons" is not a sex-based action. Coming full circle, there will be pressure on the Court not simply to check regulation disadvantageous to pregnant women but to uphold new-style protective legislation—for example, laws requiring employers to grant to pregnant women a voluntary leave period not accorded others with temporarily disabling physical conditions.

In what areas does the Constitution allow explicit male/ female classification? A few idiosyncratic problems survive.

According to current doctrine, the Constitution affords some leeway for discrimination with respect to parental rights and relationships, at least when children are born out of wedlock. A unanimous Court held in Quilloin v. Walcott (1978) that an unwed father who "has never exercised actual or legal custody over his child" has no constitutional right to block adoption approved by the mother. (In contrast, the Court held in Caban v. Mohammed [1979] that a state statute discriminated on the basis of sex in violation of equal protection when it permitted adoption of a child born out of wedlock solely on the mother's consent, even when the father's parental relationship with the child was substantial.) And according to Parham v. Hughes (1979) a state may condition an unwed father's (but not an unwed mother's) right to recover for wrongful death upon his legitimation of his child by court order. The main theme of the Parham opinion had been sounded earlier: women and men were not similarly situated for the purpose at hand—maternity is rarely in doubt, but proof of paternity is often difficult. Hence, as the Court held in lalli v. lalli (1978), the state may erect safeguards against spurious filiation claims. Those safeguards may be applied even when, as in Parham, father and child had a close and constant relationship.

michael m. v. superior court (1981) upheld, 5–4, California's "statutory rape" law, under which a male who engages in sexual intercourse with an underage female commits a crime; a female who engages in sexual intercourse with an underage male does not. Both participants in the act that precipitated the prosecution in Michael M. were underage.

There was no majority opinion in Michael M. Justice william h. rehnquist wrote for the Court's plurality. He postulated as the statute's purpose, as California had argued, the prevention of teenage pregnancy, and reasoned that males and females were not similarly situated in this setting. Nature inhibited the female, for she would suffer the consequences. The law could legitimately take into account this fact of life by punishing the male, who lacked a biological deterrent. Moreover, the plurality found persuasive California's further contention that sparing the female from criminal liability might encourage her to report the unlawful activity.

Given the ancient roots of the California law, Justice william j. brennan pointed out in dissent, it was plain that the sex classification "was initially designed to further … outmoded sexual stereotypes" (young women are not capable of consenting to an act of sexual intercourse, young men can make such decisions for themselves). For Justice Stevens, who dissented separately, the critical question in Michael M. was whether "the sovereign … govern[s] impartially" under a statute that authorizes punishment of the male, but not the female, even "when they are equally responsible" for the disfavored conduct, indeed even "when the female is the more responsible of the two." The answer, it seemed to Justice Stevens, was clearly "no."

Although by 1980 many states had amended all of their sex crime laws to render them equally applicable to males and females, Michael M. touched a sensitive nerve. In view of the 4–1-4 division, the decision may well remain an isolated instance.

rostker v. goldberg (1981) presented the politically loaded question whether Congress could confine draft registration to males. Congress had thought about the matter and decided it in 1980. It considered, on the administration's recommendation, authorizing the President to require registration by both sexes. But it decided on registration for males only. The Court's 6–3 decision upheld the sex classification. The opinion, written by Justice Rehnquist, underlined the special deference due congressional judgments in the areas of national defense and military affairs.

The Rostker opinion asserted that men and women were not similarly situated for the purpose at hand because women were excluded from combat service, an exclusion "Congress specifically recognized and endorsed … in exempting women from registration." Reminiscent of Schlesinger v. Ballard, where no party challenged the dissimilar promotion opportunities for male and female naval officers, no party challenged the combat exclusion in Rostker. Even so, the executive branch had estimated that in the event of a major mobilization there would be a substantial number of noncombat positions in the armed services that conscripted women could fill. Against this backdrop Rostker may be explained as a war powers case, unlikely to have a significant influence in future sex discrimination cases.

Constitutional doctrine relating to gender discrimination, although still evolving, and variously interpreted, is nonetheless a remarkable judicial development. In contrast to race discrimination, an area in which constitutional interpretation is tied to amendments drawn with a view to the eradication of the legacy of black slavery, gender discrimination was not a concern to which the Reconstruction Congress (or the Founding Fathers) adverted. Nonetheless, the Court, since 1970, has creatively interpreted clauses of the Constitution (equal protection and, less securely, due process) to accommodate a modern vision of sexual equality in employment, in access to social benefits, in most civic duties, in reproductive autonomy. Such interpretation has limits, but sensibly approached, it is consistent with the grand design of the Constitution-makers to write a charter that would endure as the nation's fundamental instrument of government.

Ruth Bader Ginsberg

(see also: Gender Rights.)


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