Amdt14.S1.4.2.3.1.1.1 Gender Classifications: Doctrine from 1870s to 1960s

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Shortly after ratification of the Fourteenth Amendment, the refusal of Illinois to license a woman to practice law was challenged before the Supreme Court, and the Court rejected the challenge in tones that prevailed well into the twentieth century. For example, the Court stated in 1873 that [t]he civil law, as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.1 On the same premise, a statute restricting the franchise to men was sustained.2

The greater number of cases involved legislation aimed to protect women from oppressive working conditions, as by prescribing maximum hours3 or minimum wages4 or by restricting some of the things women could be required to do.5 A 1961 decision upheld a state law that required jury service of men but that gave women the option of serving or not. We cannot say that it is constitutionally impermissible for a State acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.6 Another type of protective legislation for women that was sustained by the Court is that premised on protection of morals, as by forbidding the sale of liquor to women.7 In a highly controversial ruling, the Court sustained a state law that forbade the licensing of any female bartender, except for the wives or daughters of male owners. The Court purported to view the law as one for the protection of the health and morals of women generally, with the exception being justified by the consideration that such women would be under the eyes of a protective male.8

A wide variety of sex discrimination by governmental and private parties, including sex discrimination in employment and even the protective labor legislation previously sustained, is now proscribed by federal law. In addition, federal law requires equal pay for equal work.9 Some states have followed suit.10 While the proposed Equal Rights Amendment was before the states and ultimately failed to be ratified,11 the Supreme Court undertook a major evaluation of sex classification doctrine, first applying a heightened traditional standard of review (with bite) to void a discrimination and then, after coming within a vote of making sex a suspect classification, settling upon an intermediate standard. These standards continue, with some uncertainties of application and some tendencies among the Justices both to lessen and to increase the burden of governmental justification of sex classifications.

Footnotes

  1.  Jump to essay-1Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873).
  2.  Jump to essay-2Minor v. Happersett, 88 U.S. (21 Wall) 162 (1874) (privileges and immunities).
  3.  Jump to essay-3Muller v. Oregon, 208 U.S. 412 (1908); Dominion Hotel v. Arizona, 249 U.S. 265 (1919).
  4.  Jump to essay-4West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
  5.  Jump to essay-5E.g., Radice v. New York, 264 U.S. 292 (1924) (prohibiting night work by women in restaurants). A similar restriction set a maximum weight that women could be required to lift.
  6.  Jump to essay-6Hoyt v. Florida, 368 U.S. 57, 62 (1961).
  7.  Jump to essay-7Cronin v. Adams, 192 U.S. 108 (1904).
  8.  Jump to essay-8Goesaert v. Cleary, 335 U.S. 464 (1948).
  9.  Jump to essay-9Thus, title VII of the Civil Rights Act of 1964, 80 Stat. 662, 42 U.S.C. §§ 2000e et seq., bans discrimination against either sex in employment. See, e.g., Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971); Dothard v. Rawlinson, 433 U.S. 321 (1977); Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978); Arizona Governing Comm. for Tax Deferred Plans v. Norris, 463 U.S. 1073 (1983) (actuarially based lower monthly retirement benefits for women employees violates Title VII); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (hostile environment sex harassment claim is actionable). Reversing rulings that pregnancy discrimination is not reached by the statutory bar on sex discrimination, General Electric Co. v. Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), Congress enacted the Pregnancy Discrimination Act, Pub. L. No. 95-555 (1978), 92 Stat. 2076, amending 42 U.S.C. § 2000e. The Equal Pay Act, 77 Stat. 56 (1963), amending the Fair Labor Standards Act, 29 U.S.C. § 206(d), generally applies to wages paid for work requiring equal skill, effort, and responsibility. See Corning Glass Works v. Brennan, 417 U.S. 188 (1974). On the controversial issue of comparable worth and the interrelationship of title VII and the Equal Pay Act, see County of Washington v. Gunther, 452 U.S. 161 (1981).
  10.  Jump to essay-10See, e.g., Roberts v. United States Jaycees, 468 U.S. 609 (1984) (state prohibition on gender discrimination in aspects of public accommodation, as applied to membership in a civic organization, is justified by compelling state interest).
  11.  Jump to essay-11On the Equal Rights Amendment, see discussion of Ratification, supra.