DISCRIMINATORY LAWS
“Every constitution written since the end of World War II includes a provision that men and women are citizens of equal stature. Ours does not. I have three granddaughters. I’d like them to be able to take out their Constitution and say, ‘Here is a basic premise of our system, that men and women are persons of equal stature.’ But it’s not in there. We just have the equal protection clause, which everyone knows was not meant in the 1860s to change anything with regard to women’s status. Women didn’t get to vote until 1920.”1—Supreme Court Justice Ruth Bader Ginsburg (Steve Petteway, courtesy of Collection of the Supreme Court of the United States)
With financial backing from the Laundry Owners’ Association, Curt Muller, who owned a laundry business in Portland at the turn of the twentieth century, appealed his conviction for hiring Emma Gotcher, a female employee, to work more than ten hours in one day. He argued that the law limiting women’s work to ten hours a day interfered with their contract rights. In 1908, the Supreme Court upheld the law, noting that “as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.”2 Historically, discriminatory laws that were passed to protect women were considered beneficial to women.
Men marched for the right to drink beer in Oklahoma, where the sale of 3.2-percent beer to males under twenty-one was prohibited, while females over eighteen were allowed to buy this beer. Curtis Craig, an eighteen-year-old man, together with a licensed vendor of 3.2-percent beer, challenged the law in court, leading to a landmark Supreme Court case in 1976, Craig v. Boren, which heightened the level of review to “intermediate scrutiny” for sex discrimination cases.3
In many of its decisions, the Supreme Court has focused on equal treatment under the Fourteenth Amendment, rather than actual equality between men and women. An equal treatment approach, which is gender neutral, does not factor in the history of discrimination against women. In mandating equal treatment of men and women who are similarly situated, this approach does not effectively address the fact that men and women are generally not similarly situated. The entrenched historical inequality between the sexes cannot be erased by the creation of a level playing field because the players themselves are at two different levels. For the vast majority of women who have substantially less to begin with than men, a level playing field will only serve to keep them at the same lower level. An ERA intended to promote sex equality could help ensure that equal means really equal.
Over the past few decades, in large part because of the public awareness raised by the women’s movement of the blatant legal inequalities between women and men, quite a number of laws explicitly discriminating on the basis of sex have been rescinded or amended. Nevertheless, some such laws remain, and there is an extensive body of jurisprudence on the distinctions based on sex and other classifications that are permissible under the Equal Protection Clause of the Fourteenth Amendment. One such law, upheld by the Supreme Court in 2001, relates to citizenship. Children who are born overseas to unwed parents, one of whom is an American citizen, have different rights to United States citizenship depending on whether they have an American mother or an American father. This law, based on gender stereotypes, explicitly discriminates against American fathers and their children. Even if paternity is acknowledged and documented, and even if an American father desperately wants to transmit citizenship to his son or daughter, the Immigration and Nationality Act governing citizenship for children born out of wedlock imposes additional requirements on American fathers not applicable to American mothers in the same situation.4 While children born overseas to American mothers are held to have acquired U.S. citizenship at birth, an American father must take certain legal steps to register a relationship with his child born overseas before that child reaches the age of majority. Otherwise, that child loses the right to claim U.S. citizenship.
Tuan Anh Nguyen was born in 1969 in Vietnam to unwed parents—an American father and a Vietnamese mother. At the age of six, Tuan Anh came as a refugee to the United States, where he was raised in Texas by his father, Joseph Boulais. Joseph never legally adopted his son. Tuan Anh was a lawful permanent resident, but he never applied for naturalized citizenship. In 1992, at the age of twenty-two, Tuan Anh pled guilty to charges of criminal conduct and was sentenced to eight years imprisonment. His conviction for felony offenses led the Immigration and Naturalization Service to initiate deportation proceedings against him. Joseph went to court and obtained an order of parentage for Tuan Anh while the deportation appeal was pending, but the appeal was dismissed because Joseph had not complied with the requirement of the law that he officially register his paternal relationship with his son before Tuan Anh reached the age of majority. It was too late, and the Board of Immigration Appeals upheld the order of deportation.
Tuan Anh and his father together appealed to the courts for relief from his deportation. The Fifth Circuit court rejected their claim that the law violates the right to equal protection by setting forth different citizenship rules for children born overseas to unwed parents, depending on the sex of the citizen parent. The Supreme Court, by a 5–4 majority, affirmed the decision and upheld the constitutionality of the law, asserting that the difference in the requirements imposed by Congress on unmarried fathers and mothers was based on the “significant difference between their respective relationships to the potential citizen at the time of birth.”5 The court articulated two governmental interests underlying these requirements: the first was the importance of assuring paternity, and the second was the interest in ensuring that the child and parent have an opportunity to “develop a relationship that consists of real, everyday ties providing a connection between child and citizen parent.”6 Because of the mother’s presence at birth, the court found that she inherently has this opportunity but that it is not inevitable in the case of a father, who may not even know that his child has been conceived. Requiring a father to demonstrate this relationship sometime in the first eighteen years of his child’s life, the court held, was a means “in substantial furtherance of an important governmental objective,” and it found the fit between the means and the end to be “exceedingly persuasive.”7
The real reason for passage of this law was that, with so many American servicemen overseas, the government wanted to prevent children born as a result of their R&R activities abroad from claiming American citizenship. This reason was openly acknowledged by Justice Anthony Kennedy, who wrote the majority opinion for the court:
One concern in this context has always been with young men on duty with the Armed Forces in foreign countries. Today, the ease of travel and willingness of Americans to visit foreign countries have resulted in numbers of trips abroad that must be of real concern when contemplating the prospect of mandating, contrary to Congress’ wishes, citizenship by male parentage subject to no condition other than the father’s residence in this country. Equal protection principles do not require Congress to ignore this reality.8
In effect, the citizenship law was designed to accommodate irresponsible men who fathered children overseas, often while serving in the military, and abandoned these children after returning to the United States. Justice Kennedy cited statistics for 1969, the year in which Tuan Anh Nguyen was born, noting that there were 3,458,072 military personnel on duty in foreign countries, only 39,506 of whom were female.9 He noted that the passage of time had only strengthened the argument for restricting citizenship as “the ease of travel and the willingness of Americans to visit foreign countries have resulted in numbers of trips abroad. . . . In 1999 alone, Americans made almost 25 million trips abroad, excluding trips to Canada and Mexico.” Justice Kennedy also pointed out that “especially in light of the number of Americans who take short sojourns abroad, the prospect that a father might not even know of the conception is a realistic possibility.”10 Recognizing that paternity can be established by DNA, Justice Kennedy suggested that the importance of this interest was “too profound to be satisfied merely by conducting a DNA test.”11 Such a test did not ensure contact between father and child during the child’s minority, a contact not required between mother and child beyond the moment of birth.
Protecting the American men who travel around the world sowing their seed without regard to consequence, the Supreme Court upheld this discriminatory law, which deprived a responsible parent, Joseph Boulais, of the son he had raised and lived with for sixteen years. Rather than serving his term of imprisonment in the United States, Tuan Anh Nguyen was subject to deportation from the only country he knew as his home and the life he had had with his father from the age of six, when in fact he would have been a U.S. citizen from birth if his mother rather than his father had been the American citizen, even if she had abandoned him immediately thereafter.
The four justices who dissented from this decision included the two women serving on the Supreme Court at the time, Justice Sandra Day O’Connor and Justice Ruth Bader Ginsburg. Written by Justice O’Connor, the dissent noted that the citizenship law treated mothers and fathers who were both present at the birth of their child differently solely on the basis of sex. “This type of treatment,” Justice O’Connor said, “is patently inconsistent with the promise of equal protection of the laws.”12
Justice O’Connor suggested that the law was supported by gender stereotypes of parental roles, not biological differences. The assumption in the discriminatory citizenship law is that mothers are more likely than fathers to develop meaningful relationships with their children, and the message, endorsed by the Supreme Court, is that fatherhood is optional even when established by DNA. As Justice O’Connor’s dissent noted, the law is “paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for non-marital children.”13 The conduct of American servicemen overseas and the opportunities they had “to interact with citizens of foreign countries” bore little relation, she said, to the question of whether the discriminatory law was a permissible governmental response to the circumstances. “Indeed,” Justice O’Connor suggested, “the majority’s discussion may itself simply reflect the stereotype of male irresponsibility that is no more a basis for the validity of the classification than are stereotypes about the ‘traditional’ behavior patterns of women.”14 Joseph Boulais was exceptional. Many young children, growing up with blue eyes or curly hair in Vietnam, were abandoned by their mothers as well as their fathers and ostracized by the community. They dreamed of finding their fathers in America. But in a 1970 statement, the U.S. Defense Department said, “The care and welfare of these unfortunate children . . . has never been and is not now considered an area of government responsibility.”15 The citizenship law went even further by legitimizing the failure of fathers to take responsibility for their Amerasian children, with a seal of approval from the Supreme Court.
In reviewing the law in the Nguyen case, the court applied a test known as “intermediate scrutiny.” Through its jurisprudence on cases of discrimination brought under the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court has established a hierarchy of tests for laws that are explicitly discriminatory. Under the lowest level of scrutiny, known as the rational basis test, a law is constitutional if its purpose is rationally related to a legitimate government interest. Under intermediate scrutiny, a law must be substantially related to an important government interest to be upheld as constitutional. Under the most rigorous test, strict scrutiny, a law must be necessary to achieve a compelling government interest, or else it will be struck down as unconstitutional. In summary, the courts make a judgment about the constitutionality of a law by looking to its means and its purpose, subjecting it to a given level of scrutiny (rational basis, intermediate scrutiny, or strict scrutiny).
It is clear that in varying circumstances, a law might pass one, or two, but not all three of these tests. The Nguyen case is one such example. It was reviewed using the standard of “intermediate scrutiny,” requiring that there be an “important government purpose” of the law and that the law be “substantially related” to that purpose. The purpose of the citizenship law as articulated by the Supreme Court was twofold: the importance of assuring paternity and an interest in ensuring an opportunity for the child and parent to have a meaningful relationship. This purpose was reasonably deemed “important” and might well have even been deemed “compelling” under a higher standard of review. The requirements set forth in the law certainly relate to this purpose. The question for the court was whether the requirements were substantially related to the purpose of ensuring that there is an opportunity for a meaningful relationship between parents and children born outside marriage. As the dissent pointed out, many other sex-neutral alternatives could have been adopted, such as the presence of the parent at birth. If the real interest was to ensure that a relationship actually developed between child and parent, then that might also have been established in a sex-neutral way and the requirement could have applied to mothers as well as fathers. The court divided 5–4 on whether the citizenship law requirements for men only were a means “substantially related” to the government’s purpose.
To uphold the citizenship law in the Nguyen case under a standard of “strict scrutiny,” the Supreme Court would have had to find that its requirements were “necessary” to achieve the intended purpose. The availability of sex-neutral alternatives to achieve this purpose, some even mentioned by the majority in its opinion, would render the sex-based discriminatory requirements of the law unnecessary and therefore impermissible under this higher standard of review. However, under “intermediate scrutiny,” the fact that comparable sex-neutral alternatives could be used to achieve the same purpose does not preclude a finding that the sex-discriminatory requirements are “substantially related” to the achievement of the government’s purpose and therefore permissible.
The differing levels of review, as demonstrated by the Nguyen case, mean that the protection from discrimination offered by the Equal Protection Clause is not equal for all classes of people. “Suspect” classifications such as race and religion are judged by the highest standard of “strict scrutiny,” while sex has been granted an “intermediate” standard of review as a “quasi-suspect” classification. If the Nguyen case had been judged by the stricter standard of scrutiny to which racial or religious discrimination is subjected, the Supreme Court would almost certainly have required the same treatment of U.S. citizen fathers and U.S. citizen mothers with regard to the transmission of citizenship to their children.
When for the first time, in 1971, the Supreme Court reviewed a sex discriminatory law under the Fourteenth Amendment using this equal protection analysis, it applied the traditional “rational basis” test. In this case, Richard Reed, a minor in Idaho, had died without a will. His parents, Sally and Cecil Reed, separated at the time of Richard’s death, both filed petitions in the probate court, each seeking to be named the administrator of their deceased son’s estate. The law provided that if there was more than one person equally entitled to administer the state, “males must be preferred to females.” For this reason, the probate court appointed Cecil Reed as administrator. Sally challenged the law, arguing that the Fourteenth Amendment prohibited discrimination on the basis of sex. The Supreme Court agreed, concluding that “the arbitrary preference established in favor of males by §15-314 of the Idaho Code cannot stand in the face of the Fourteenth Amendment’s command that no State deny the equal protection of the laws to any person within its jurisdiction.”16 The court found that differentiating on the basis of sex in granting letters of estate administration bore no rational relationship to a government interest. It invalidated the law as unconstitutional in 1971.
The “intermediate” standard of review applied in the Nguyen case was first developed in a 1973 case relating to benefits in the armed services. The challenged law allowed men to claim their wives as “dependents” regardless of whether they were actually dependent on their husbands, while women in the armed services could claim their husbands as “dependents” only if they were in fact dependent on their wives. Sharron Frontiero, a lieutenant in the air force, challenged the denial of “dependent” status to her husband, Joseph, claiming that the sex discrimination in the benefits offered by the armed services to men and women in its ranks was a violation of the Constitution. In this case, Frontiero v. Richardson, the Supreme Court held that departure from the traditional “rational basis” analysis for review of classifications based on sex was “clearly justified” and recalled the “long and unfortunate history of sex discrimination” in the country. Sex was differentiated from other classifications and considered “suspect” because, according to the court, “the sex characteristic frequently bears no relation to ability to perform or contribute to society.” Consequently, “statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.” Considering also the recent initiatives by Congress to address sex discrimination, including the Equal Pay Act and Title VII of the Civil Rights Act, and the passage by Congress of the Equal Rights Amendment in 1972, the court concluded that sex-based classifications, like race-based classifications, are “inherently suspect, and must therefore be subjected to strict judicial scrutiny.”17
The plurality opinion in Frontiero was written by Justice William Brennan, joined by Justice William Douglas, Justice Byron White, and Justice Thurgood Marshall. Justice Lewis Powell wrote a concurring opinion, joined by Chief Justice Warren Burger and Justice Harry Blackmun. While agreeing that the law was unconstitutional, Justice Powell disagreed with the view that all sex-based classifications should be inherently suspect and subject to strict scrutiny. For the purpose of the case at hand, he felt that even under the traditional “rational relationship” test of constitutionality, the law could not be upheld in any event. The Equal Rights Amendment had been passed by Congress and submitted to the states for ratification, and until it was adopted, he felt it would be premature to add “sex” to the list of inherently suspect classifications.18
In 1976, the Supreme Court reviewed a law from Oklahoma prohibiting the sale of 3.2-percent beer to males under the age of twenty-one and females under the age of eighteen. The law was challenged by Curtis Craig, an eighteen-year-old man, together with Carolyn Whitener, a licensed vendor of 3.2-percent beer. Previously in Oklahoma, the age of majority had been eighteen for women and twenty-one for men, and the age of adult criminal responsibility had been eighteen for women and sixteen for men. These age differentials were struck down as unconstitutional by the Tenth Circuit Court of Appeals in 1972, and the age of majority for both men and women was set at eighteen. With regard to the sale of beer, however, the court noted, “public health and safety represents an important function of state and local governments.”19 Statistics submitted to the court indicated that in Oklahoma, young men aged eighteen to twenty were arrested for drunkenness ten times as often as young women of the same age, and for drunk driving almost eighteen times as often. Nationwide, during a five-year period from 1967 to 1972, arrests of those under eighteen for drunken driving increased 138 percent, with 93 percent of all those arrested being young men.20
The district court upheld the Oklahoma law, finding on the basis of this evidence that there was a rational basis for the legislation under challenge—namely, the interest of the state in enhancement of traffic safety. The Supreme Court disagreed, looking at the Oklahoma statistics that indicated while 0.18 percent of young women were arrested for drunk driving, 2 percent of young men (more than ten times the number of young women) were arrested for drunk driving. The court felt that while this disparity was “not trivial in a statistical sense,” it could not be used to justify a gender-based distinction in the law.21 As Justice Stevens put it in his concurring opinion, “The legislation imposes a restraint on 100% of the males in the class allegedly because about 2% of them have probably violated one or more laws relating to the consumption of alcoholic beverages. . . . [I]t does not seem to me that an insult to all of the young men of the State can be justified by visiting the sins of the 2% on the 98%.”22 The court cited its Reed decision, but it found that “the relationship between gender and traffic safety becomes far too tenuous to satisfy Reed’s requirement that the gender-based difference be substantially related to achievement of the statutory objective.”23 The court struck down the law as “a denial of equal protection of the laws to males aged 18–20.”24
In his concurring opinion, Justice Powell agreed with the outcome but expressed reservations with regard to the appropriate standard for equal protection analysis. He said, “The Court has had difficulty in agreeing upon a standard of equal protection analysis that can be applied consistently to the wide variety of legislative classifications. There are valid reasons for dissatisfaction with the ‘two tier’ approach.” He recognized that “our decision today will be viewed by some as a ‘middle tier’ approach. While I would not endorse that characterization and would not welcome a further subdividing of equal protection analysis, candor compels the recognition that the relatively deferential ‘rational basis’ standard of review normally applied takes on a sharper focus when we address a gender-based classification.”25 Justice Stevens, also concurring, expressed concern over “what has become known as the two-tiered analysis of equal protection claims” and suggested that really it was a “method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion.”26 He noted that “[m]en as a general class have not been the victims of the kind of historic, pervasive discrimination that has disadvantaged other groups.”27
Chief Justice Burger dissented, and said of the standard of review used by the court, “Though today’s decision does not go so far as to make gender-based classifications ‘suspect,’ it makes gender a disfavored classification.” The means employed by the Oklahoma legislature were clearly rational, even if others found them to be “unwise, unneeded, or possibly even a bit foolish.”28 In another dissent, Justice Rehnquist also criticized the court’s enunciation of a new standard. He scorned the language of intermediate review, that a law treating men less favorably than women “must serve important governmental objectives and must be substantially related to achievement of those objectives” as coming “out of thin air.”29 Justice Rehnquist warned the court, “We have had enough difficulty with the two standards of review which our cases have recognized—the norm of ‘rational basis,’ and the ‘compelling state interest’ required where a ‘suspect classification’ is involved—so as to counsel weightily against the insertion of still another ‘standard’ between those two.”30
Justice Rehnquist also pointed out, as “the only redeeming feature of the Court’s opinion,” that it signaled a retreat from the views expressed by the plurality opinion in Frontiero that sex was a “suspect” classification subject to strict scrutiny for purposes of equal protection analysis. He recalled that in Frontiero, the reasons put forward for this classification centered on the “long and unfortunate history of sex discrimination” in the United States.31 The range of legal restrictions on women, including ownership of property and participation in the electoral process, had the effect, the Frontiero decision had said, of “relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.” Justice Rehnquist asked why the Oklahoma statute should be subject to “an elevated or ‘intermediate’ level of scrutiny, like that invoked in cases dealing with discrimination against females.” Without the history of past discrimination such as that relied on in the Frontiero decision for its invocation of strict scrutiny, to his mind there was no justification for a higher level of scrutiny in this case involving discrimination against men than in cases of discrimination against women. “There is no suggestion in the Court’s opinion,” he observed, “that males in this age group are in any way peculiarly disadvantaged, subject to systematic discriminatory treatment, or otherwise in need of special solicitude from the courts.”32
For this reason, Justice Rehnquist believed the Oklahoma law should be reviewed under the traditional “rational basis” test, rather than a heightened standard of scrutiny. His analysis of the statistics on drunk driving was not focused on the numbers themselves but on their relationship to each other. The question was not whether 2 percent of men arrested was high or low, but how much higher it was than the 0.18 percent of women arrested, “whether the incidence of drunk driving among young men is sufficiently greater than among young women to justify differential treatment.” Justice Rehnquist considered the evidence to suggest “clear differences between the drinking and driving habits of young men and women,” and that these differences were enough for the state to reasonably conclude that young men posed a far greater hazard to highway safety. “[T]he gender-based difference in treatment in this case is therefore not irrational,” he said.33
Justice Rehnquist recognized in his dissent that men are differently situated than women. Traditionally, women have been victimized by sex discrimination, while men have more often been its perpetrators. But the underlying principle of providing additional benefit or protection for those who have been historically subject to discrimination is only one of several themes running through the jurisprudence. Another theme is the right to equal treatment, which is blind to the differences between the sexes, including their relative treatment historically. It is ironic that the heightened standard of scrutiny for sex-based discrimination comes from a case about men’s right to buy beer, brought not only by a young man adversely affected by the law but also by a vendor whose interest was in selling beer. This scenario is very different from the one in which women are given secondary rights to men in the appointment of estate administrators, or in which women’s rights to employment benefits for their husbands are narrower than men’s rights to employment benefits for their wives, based on stereotypes of dependency that assume wives are dependent on their husbands, and husbands are not dependent on their wives.
Equal treatment in many of the cases is the issue that has been adjudicated by the Supreme Court rather than the more fundamental notion of actual equality between men and women, which recognizes that women have been historically disadvantaged. An equal treatment approach inherently leads to gender neutrality, where the issue is not discrimination against women but equal treatment of men and women who are similarly situated. This approach tends to preserve the status quo. It has not effectively addressed the fact that men and women are generally not similarly situated. Men, as well as women, have benefited from the Fourteenth Amendment’s guarantee of equal protection in some cases, but the jurisprudence has evolved in such a way that it is largely blind to the inequality between the sexes and the history of discrimination against women, even though that history is what led to the recognition of the need for heightened scrutiny of laws with distinctions based on sex.
The exclusion of women from educational settings is another form of explicit discrimination that the Fourteenth Amendment has addressed within the framework of equal treatment for men and women who are equally qualified. In 1996, the Supreme Court held that the Virginia Military Institute (VMI), a single-sex school for men that received state funding, was required to admit women who met the same qualifications as men. The Fourth Circuit court had initially ordered VMI to remedy the constitutional violation and had accepted as a remedy the creation of a parallel program for women, the Virginia Women’s Institute for Leadership at a private liberal arts women’s college, finding the new program to be “substantively comparable” to VMI.34 But the Supreme Court disagreed and struck down VMI’s male-only admissions policy.35 At around the same time, in 1993, Shannon Faulkner applied to The Citadel in South Carolina, the country’s only other state-supported all-male military college. A student with a 4.0 grade point average, Shannon deleted all references to her sex on the application and was accepted for admission. When The Citadel learned she was female, it rescinded its offer to her. The district court ordered her admission, and the Fourth Circuit court affirmed the order.36 In 1995, Shannon enrolled, the only woman in the class, entering the school with an escort of United States marshals. She had received a number of threats, including one that her parents would be killed.37 Five days later, Shannon dropped out, citing emotional and psychological abuse. At the time, the male cadets openly celebrated her departure. However, since then, hundreds of women have graduated from The Citadel.
In 1972, Title IX was added to the Education Amendments Act, prohibiting any educational program or activity that receives federal financial assistance from discriminating on the basis of sex. Title IX was patterned after Title VI of the Civil Rights Act of 1964, which prohibits entities that receive federal financial assistance from discriminating on the basis of race, color, or national origin. Later, both the Age Discrimination Act and Section 504 of the Rehabilitation Act of 1973 adopted similar prohibitions for entities receiving federal financial assistance, for discrimination based on age and disability, respectively.
Title IX has had a dramatic impact in promoting educational equality for girls and women. For a decade after its passage, courts uniformly ruled that a recipient of federal financial assistance could not discriminate in any aspect of its program. But in 1984, the Supreme Court took a different approach. In Grove City v. Bell, the court affirmed that Grove City College, a private coeducational school in Pennsylvania, was subject to Title IX because it admitted students who benefited from federally funded scholarships. However, the court declined to apply Title IX to Grove City College as a whole, instead limiting its application only to the financial aid program of the college that actually received the federal financial assistance.38 This decision left all the Grove City College programs and activities other than financial aid free from the prohibition against discrimination on the basis of sex.
Women’s rights activists were outraged by this ruling, which drastically reduced Title IX’s scope and the original application of the law. Together with civil rights advocates who feared the extension of the ruling to race, age, and disability discrimination, they turned to Congress. The Civil Rights Restoration Act of 1987 subsequently passed by Congress effectively overturned the Supreme Court’s ruling. The act provided that an entity’s receipt of federal funding mandated compliance with the four civil rights laws in all of the entity’s programs and activities, not just those that received the federal funding. Although President Ronald Reagan vetoed the bill, Congress voted to override his veto, restoring the broader coverage that had been available under the law prior to the Grove City College decision.
Title IX has mandated equal opportunity in the previously all-male bastion of school athletics. Before Title IX was passed in 1972, female college athletes received only 2 percent of the overall athletic budgets.39 From 1972 to 2001, the percentage of female high school athletes went from 7.4 percent to 41.5 percent.40 Title IX has also opened inroads for girls and women to traditionally male-dominated areas of education as well, such as math and science. It has also been used to address sexual harassment in education.41 There are significant inherent limitations on Title IX’s impact, however. The statutory penalty for noncompliance is only the withdrawal of federal funding. And Title IX applies only to schools that receive federal funding, which leaves private schools, and local and state educational programs that don’t receive federal funds, free from its prohibition of sex-based discrimination.
Historically, certain explicitly discriminatory laws that were passed to protect women were considered beneficial to women. While in 1905 the Supreme Court struck down a law in New York limiting the work hours of laborers to ten hours per day, in 1908 the court upheld a law in Oregon limiting the work hours of women to ten hours per day. The court found in the laborers’ case, Lochner v. New York, that a ten-hour limit on work hours was an impermissible interference with the right to contract freely for labor,42 but qualified this right for women in Muller v. Oregon on the grounds that “women’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil.”43 In the Muller decision, Justice David Brewer highlighted “the performance of maternal functions” and the “burdens of motherhood,” noting that “as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.”44
The plaintiff in Muller was Curt Muller, the owner of a laundry business in Portland, Oregon, who had been convicted for requiring Emma Gotcher, a female employee, to work more than ten hours on September 4, 1905. He was convicted under the law and fined $10. Lochner had been recently decided by the Supreme Court, and Muller appealed his conviction with financial backing from the Laundry Owners’ Association on the grounds that the law in Oregon discriminated against women by interfering with the contract rights that had just been upheld by the court. When the court’s decision upholding the ten-hour limitation was reported in the Oregonian, among the headlines were “Federal Supreme Court Declares Women’s Right of Contract May Be Restricted in the Interest of the General Public” and “Safeguard Human Race.”45 Brought by a woman’s employer and supported by his trade association, this case challenging a protective law as discriminating against women was hardly emblematic of women’s equality and empowerment on either side. Indeed, in his judgment upholding the law, Justice Brewer noted the weakness of women and “the fact that woman has always been dependent upon man.”46
In 1974, the Supreme Court upheld a property tax exemption in Florida for widows that did not apply to widowers. In this case, Kahn v. Shevin, the governmental purpose identified was the reduction of disparity between the economic capabilities of men and women.47 Citing the 1972 statistic that women made only 57 cents for every dollar made by men, Justice Douglas found that the law was substantially related to this purpose. A series of cases have followed, including cases brought by men challenging benefits exclusively or preferentially for women as discriminatory against men. In Weinberger v. Wiesenfeld, a 1975 case, the Supreme Court struck down a provision of the Social Security Act which allowed widows but not widowers to collect special benefits while caring for minor children. The court found the provision to be a constitutional violation of the rights of men under the Equal Protection Clause.48 Much of the case law circles around the tension between support for protective measures recognizing the disadvantage generally faced by women, on the one hand, and the demand for equal treatment between men and women, on the other, to ensure that similarly situated men are treated the same as women.
Very little of the discussion in these cases follows the rationale articulated in Kahn—a rationale for affirmative action, meaning the adoption of remedial measures to address past discrimination against women, rather than the rationale for protectionism, meaning the adoption of protective measures based on a perceived inherent need that women have for special protection. In Califano v. Webster, the Supreme Court in 1977 upheld a pension law benefiting women by allowing them to exclude more low-earning years from the calculation of their pensions than men. In its decision, the court recognized that reduction of economic disparity between women and men caused by the long history of discrimination against women was an important governmental objective.49 Yet in Califano v. Goldfarb, decided the same year, the Supreme Court struck down a pension law that treated death benefits differently on the basis of sex, automatically paying benefits to widows while paying benefits to widowers only if they were receiving at least half of their support from their wives. In this case, the court debated whether the equal protection analysis should focus on discrimination against the male widowers or against their deceased wives, concluding that the congressional intent was to aid widows, “coupled with the presumption that wives are usually dependent.”50 This presumption did not justify, according to the court, sex-based discrimination in the distribution of employment-related benefits.
The early protectionist legislation limiting women’s right to work in Oregon, upheld in the Muller case, was not necessarily in the best interests of women, and served other interests equally or more. The state expressed an interest in preserving healthy reproduction, and the plaintiff had an interest in the freedom of contract that allowed him to contract workers for more than ten hours a day. Over time, the law took a different approach, shifting into the equal protection framework of analysis that is currently in force. This approach has not always been driven by the best interests of women either, as evidenced by the fact that one of its landmark cases is about the equal rights of young men to buy beer. Rather than championing any particular interest, such as healthy reproduction or freedom of contract, the case law has focused increasingly on the playing field rather than the players. In this context, the rights and entitlements of men are treated the same way as the rights and entitlements of women in discrimination cases. Discrimination against women is seen as equivalent to discrimination against men, with only a few dissenting comments by a few justices, and the goal is to level the playing field.
The entrenched historical inequality between the sexes cannot be erased by the creation of a level playing field because the players themselves are at two different levels. While it is easy for the Supreme Court to strike down some of the barriers women face, such as admission to VMI or The Citadel, it is difficult for the Supreme Court to promote equality in an affirmative sense. Measures designed to redress discrimination by giving women more, such as the widow’s pension in the Kahn case, inherently treat women and men differently, recognizing the different situations they are in. However, the stricter the scrutiny in equal protection analysis, the more difficult it is to treat women differently from men. Treating women and men as equal classes, subject to equal treatment, may level the playing field and help a few players who already have what they need to compete. But for the vast majority of women who have substantially less to begin with than men, a level playing field will serve only to keep them at the same lower level.
The jurisprudence to date on explicit distinctions drawn between women and men in the law is convoluted. It reflects differing lines of argument in differing schools of thought, which makes finding coherence challenging. While the Supreme Court has used the Equal Protection Clause of the Fourteenth Amendment to open some doors to some women, the court has not consistently recognized the realization of actual equality between women and men as the end goal. An Equal Rights Amendment that establishes this goal as a matter of constitutional right could go well beyond the limits of the Fourteenth Amendment by facilitating the use of the law to promote sex equality as well as to end discrimination against women.