As early as 31 March 1776, Abigail Adams wrote to her husband John, who was attending the Second Continental Congress, urging him to “remember the Ladies, and be more generous and favorable to them than your ancestors” (Butterfield et al., 1975, p. 21). Adams’s (p. 380) admonitions to her husband had little impact on either the Articles of Confederation or the Constitution. It was not until 1920 that the *Nineteenth Amendment was added to the Constitution, offering women that most basic element of *citizenship—suffrage. And, today, despite long years of a concerted drive by women’s rights groups to have an amendment guaranteeing equal rights ratified, the Constitution continues to afford women less protection from discrimination than men.

The Supreme Court often is looked upon as ahead of its time, or at least *public opinion, in the expansion of rights to minorities. This has not been the case with the rights of women. Instead, as a general rule, the Court has lagged behind societal mores and realities when it has dealt with issues of concern to women.

From the Colonial Period to the Civil War Amendments.

During the colonial period, suffrage was largely determined by local custom and usage. While there are few records of women voting, it is clear that some did, especially large landowners. Once individual states began to draft written constitutions, however, women’s suffrage evaporated. Women also were excluded by the gradual shift from gender-neutral property-owning requirements to near universal male suffrage. This emphasis on male suffrage also fostered the codification of many of the practices Abigail Adams denounced as contributing to second-class citizenship for women.

Recognition of their legally inferior status, however, did not come to women overnight. In 1848, in what is widely hailed as the first major step toward female equality under the Constitution, a women’s rights convention was held in Seneca Falls, New York. Eight years earlier, in 1840, two women active in the American abolitionist movement had traveled to London for the annual meeting of the World Anti-Slavery Society. After the long and arduous journey, Elizabeth Cady Stanton and Lucretia Mott were denied seating on the floor of the convention solely because they were women. Forced to take places in the balcony, they could not help but begin to see parallels between their status and that of the slaves they were trying to free (see slavery). They resolved to call a meeting to discuss women’s second-class status, but the antislavery movement and issues in their own lives kept them from sending out a call to Seneca Falls until 1848.

At Seneca Falls, and at a later meeting in Rochester, New York, a series of resolutions and a Declaration of Sentiments were drafted calling for expanded rights for women in all walks of life. Both documents reflected dissatisfaction with contemporary moral codes, divorce and criminal laws, and the limited opportunities for women to obtain an education, participate in the church, and to enter careers in medicine, law, and politics. None of the participants at Seneca Falls or subsequent conventions for women’s rights, however, saw the Constitution as a source of potential rights for women. Women’s rights activists did, however, eventually see the need to amend the Constitution to achieve the right to vote.

While women continued to press for changes in state laws to ameliorate their inferior legal status, they also continued to be active in the abolitionist movement. During the *Civil War, most women’s rights activists concentrated on the war effort and abolition. Many who had been present at Seneca Falls or active in subsequent efforts for women’s rights joined the American Equal Rights Association (AERA), an association dedicated to abolition and woman suffrage. AERA members saw the issues of slavery and women’s rights as inextricably intertwined, believing that woman suffrage would occur when the franchise was extended to newly freed slaves.

Even the AERA, however, soon abandoned the cause of woman suffrage with its support of the proposed *Fourteenth Amendment. When a majority of its members agreed “Now is the Negro’s hour,” key women’s rights activists including Stanton and Susan B. Anthony were outraged. They were particularly incensed by the text of the proposed amendment, which introduced the word male into the Constitution for the first time. Although Article II of the Constitution does refer to the president as “he,” the use of the word male to limit suffrage was infuriating to many women. Not only did Stanton and Anthony argue that women should not be left out of any attempt to secure fuller rights for freed slaves, but they were concerned that the text of the proposed amendment would necessitate the passage of an additional amendment to enfranchise women. How right they were. Soon after passage of the Fourteenth Amendment, the *Fifteenth Amendment was added to the Constitution to enfranchise African-American males previously ineligible to vote. Feverish efforts to have the word sex added to the amendment’s list of race, color, or previous condition of servitude as improper limits on voting were unsuccessful. Women once again were told that the rights of African-American men must come first.

Passage of the Fifteenth Amendment, and AERA’s support of it, led Anthony and Stanton to found the National Woman Suffrage Association (NWSA) in 1869. Its relatively radical demands for the reform of family laws and standards of dress, as well as its support of a well-known supporter of free love, Victoria Woodhull, led many to deride its more conservative demand for suffrage via a national *constitutional amendment.

(p. 381) Litigating for Suffrage.

The National Woman Suffrage Association’s advocacy of controversial reforms led to a severe image problem for both the association and its goals. In 1869, to lend credibility to its cause as well as to short-circuit the possibility of a long battle for a women’s suffrage amendment, Francis Minor, an attorney and the husband of a prominent NWSA member, set forth his belief that women, as citizens, were entitled to vote under the existing provisions of the Fourteenth Amendment. Minor saw NWSA’s possible resort to the courts as a means by which to gain favorable publicity for the organization. Victoria Woodhull’s presentation to Congress in 1871, urging it to pass enabling legislation to give women the right to vote under the Fourteenth Amendment, provided the impetus for renewed efforts.

Minor, along with Susan B. Anthony, quickly seized the enthusiasm that Woodhull’s suggestion created. Minor urged that *test cases be brought to determine if the courts would obviate the need for additional legislative action. A number of legal scholars and judges had publicly agreed with Minor’s arguments. Moreover, in rejecting Woodhull’s request for enabling legislation, the House of Representatives noted that if a right to vote was vested by the Constitution, that right could be established in the courts without further legislation. More important, the newly appointed chief justice, Salmon P. *Chase, had suggested that women test the parameters of the Constitution to determine if they were already enfranchised by its provisions.

Despite Chase’s encouragement, prior references to women by the Supreme Court had generally accepted a limited role for them. In Dred *Scott v. Sandford (1857), for example, Chief Justice Taney noted, “Women and minors, who form a part of the political family, cannot vote …” (p. 422). Ignoring this discouraging language, NWSA initiated several *test cases hoping to have at least one heard by the Supreme Court. Somewhat fittingly, the only one to reach the Supreme Court was *Minor v. Happersett (1875), which involved both Minors as co-plaintiffs; married women then had no legal right to sue in their own names.

Unfortunately for NWSA, before Minor was appealed to the Supreme Court, the justices heard another case challenging gender discrimination under the Fourteenth Amendment. *Bradwell v. Illinois (1873) involved a challenge to the Illinois State Supreme Court’s refusal to admit Myra Bradwell to the practice of law because she was a woman. Bradwell’s lawyer based her claim on the Fourteenth Amendment’s clause concerning *privileges and immunities. Because Bradwell’s lawyer was cognizant of the suffrage test cases, he rejected the notion that women were enfranchised under the same provisions. He carefully differentiated the practice of a chosen profession from the right to *vote, putting the Court on notice that not even all women were in agreement over the scope and reach of the Fourteenth Amendment. Despite the care he took to disassociate his client from NWSA’s tactics, the court ruled 8 to 1 against Bradwell’s petition.

The majority opinion in Bradwell—the first pronouncement from the Supreme Court on the issue of gender—was based on two grounds. First, because Bradwell was a citizen of Illinois, the Privileges and Immunities Clause of Article IV, section 2 of the Constitution was held inapplicable to her claim and to apply only to matters involving U.S. citizenship. Second, since admission to the bar of a state was not one of privileges and immunities of U.S. citizenship, the Fourteenth Amendment did not secure that right.

Far more damaging to women’s rights, however, was a concurrence written by Justice Joseph P. *Bradley, which is often referred to as the promulgation of the “Divine Law of the Creator.” Writing for himself and two other justices, Bradley observed “a wide difference in the respective spheres and destinies of man and woman” and went on to insist that 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 paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator” (p. 141).

Two years later, in Minor v. Happersett, the Court again ruled against the claim of women’s rights. The Court rejected the argument that the judiciary was empowered to read into the Fourteenth Amendment the right of suffrage as a natural privilege and immunity of citizenship. Writing for a unanimous Court, the newly appointed Chief Justice Morrison R. *Waite argued that the states were not inhibited by the Constitution from committing “that important trust to men alone” (p. 178). Nevertheless, the Court stressed that women were “persons” and might even be “citizens” within the meaning of the Fourteenth Amendment.

All of the gender discrimination cases heard by the Supreme Court during this era involved construction of the Privileges and Immunities Clause, and not the *Due Process or *Equal Protection Clauses of the Fourteenth Amendment. In the *Slaughterhouse Cases (1873), argued and decided shortly after Bradwell, the Supreme Court meticulously examined the Fourteenth Amendment. In addition to limiting the constitutional significance of the Privileges and Immunities Clause, the Court concluded that the Equal Protection Clause “is so clearly a provision to that race [the Negro] that a (p. 382) strong case would be necessary for its application to any other” (p. 81). Although the Fourteenth Amendment would be revived as a potential tool for women’s rights in the early twentieth century, women had yet to win a favorable decision against sex discrimination from the Supreme Court. While women were gaining greater rights within the *family through the passage of state-level married women’s property acts, and were beginning to gain entry into institutions of higher education, the Court stuck rigidly to its interpretation that the Equal Protection Clause of the Fourteenth Amendment was intended primarily to protect African-Americans (i.e., African-American males) from discrimination, and it held fast to traditional notions concerning women’s proper role in society.

Litigating to Protect Women.

Although the Slaughterhouse Cases did not provide a useful precedent for women seeking to practice law or to vote, the Court’s opinion planted the seeds for judicial adoption of a very broad state *police power to enact laws to protect the public health, welfare, safety, and morals. This view was accepted in several subsequent cases. In *Mugler v. Kansas (1887), however, in sustaining a law prohibiting the sale of intoxicating beverages, the Court built on the Slaughterhouse dissents of Justice Bradley and Stephen *Field, announcing that it was ready to examine the substantive reasonableness of state legislation. According to Justice John Marshall *Harlan, when state laws involving “the public morals, the public health, or the public safety” were at issue, the Court would “look to the substance of things” so as not to be “misled by mere pretenses” (p. 661). Ten years later, in *Allgeyer v. Louisiana (1897), the Court, for the first time, invalidated a state statue on substantive due process grounds. And, in *Lochner v. New York (1905), the Court similarly invalidated a law regulating the work hours of bakers.

Until then, the Court rarely looked to the substance of legislation in addressing its validity. The Court’s earlier reading of the Due Process Clause of the Fourteenth Amendment (or the *Fifth Amendment when federal legislation was involved) only guaranteed that legislation be passed in a fair manner, even though it might have an arbitrary or discriminatory impact (see due process, procedural). According to the Court in Lochner, however, state laws would fail unless the provisions at issue were deemed reasonable under “common knowledge.” Thus, the Court refused to accept New York’s claim that a ten-hour maximum-hour law for bakers was reasonable to ensure the health of bakers. Instead, the Court found that it unreasonably interfered with the employers’ and employees’ freedom of *contract protected by the Fourteenth Amendment, and found no “common knowledge” to justify such actions by New York (see due process, substantive).

The importance of common knowledge cannot be understated in chronicling the Court’s treatment of gender. Often, “common knowledge” has been a substitute for the personal views of individual justices. As Bradley’s “Divine Law of the Creator” opinion made quite clear, that view could easily lead to restrictions on the rights of women.

In the early 1900s, concern about the health, welfare, and morals of women led activists, particularly those closely allied with the growing woman suffrage movement, to press for state laws to upgrade the status of working women (see police power). Large numbers of women had begun to enter the *labor force out of necessity. Most were confined to low-paying jobs in substandard conditions, a circumstance highlighted by the 1911 Triangle Shirtwaist Factory fire in New York City, in which many young female workers lost their lives. Even before that time, however, efforts had begun to improve the working conditions of women and children. And, whether out of civic concern, moral outrage, or a sense of noblesse oblige, beginning in the 1890s, resolutions were adopted annually at suffrage conventions calling for improved conditions for women workers.

The organization most responsible for change, and for the Court’s again addressing issues of gender, was the National Consumers’ League (NCL). Through the hard work of its national staff and numerous affiliates, the NCL secured maximum hour or other restrictions on night work for women in eighteen states. Its leaders, therefore, immediately recognized how much they had at stake when the Supreme Court decided to review *Muller v. Oregon (1908), a case challenging the constitutionality of an Oregon law that prohibited the employment of women for more than ten hours a day. (Muller, the owner of a small laundry, had been found guilty of violating the statute). When Muller was accepted for review and oral argument, the NCL went to work immediately. Its general secretary quickly asked Louis D. *Brandeis, the brother-in-law of one of its most active members and already a famous progressive lawyer, to take the case. Brandeis did so under one condition—that he have sole control of the litigation, a condition to which Oregon gladly acceded, thus allowing the NCL to represent it in Court.

Numerous *state court decisions involving protective legislation for women, as well as the Supreme Court’s recent decision in Lochner, made it clear to Brandeis that a victory could be forthcoming only by presenting information or “common knowledge” that could persuade (p. 383) the Court that the dangers to women working more than ten hours a day made them more deserving of state protection than the bakers in Lochner, and by proving that there was something different about women that justified an exception to the freedom of contract doctrine enunciated in Lochner. Brandeis and the NCL would not challenge the Supreme Court’s right, under substantive due process, to make that judgment.

At Brandeis’s request, NCL researchers compiled information about the possible detrimental effects of long hours of work on women’s health and morals, as well as on the health and welfare of their children, including unborn children. Brandeis stressed women’s differences from men and the reasonableness of the state’s legislation. In fact, his brief had but three pages of strictly legal argument and 110 pages of sociological data culled largely from European studies of the negative affects of long hours of work on women’s health and reproductive capabilities. The information presented by Brandeis was not all that much different (except in quantity) from that presented on behalf of New York in Lochner, yet, the Court was persuaded by the contents of what has come to be called the “*Brandeis brief.”

In holding that the Oregon law was permissible, the Court unanimously concluded “[t]hat woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence” (p. 241). Such a condition meant the state had an interest in protecting women’s health through appropriate legislation. Muller’s impact was immediate. State courts began to hold other forms of protective legislation for women constitutional, whether or not they involved the kind of ten-hour maximums at issue in Muller. Thus, eight-hour maximum work laws in a variety of professions, outright bans on night work for women, and minimum wage laws for women routinely were upheld under the Muller rationale.

The NCL’s efforts to protect women from unscrupulous employers won the approval of the Supreme Court in several additional cases, but then ran into trouble in the early 1920s. In Stettler v. O’Hara (1917), a lower court decision upholding Oregon’s minimum-wage law for women was appealed to the Supreme Court. Forces opposed to governmental interference in contractual rights feared that a decision supporting additional protective legislation would open floodgates to more governmental regulation. Stettler’s lawyers argued that a labor agreement between an employer and an employee could not be disturbed by the government. Because the Fourteenth Amendment forbade the state from denying any individual liberty without due process of law, they argued that freedom of contract was protected by the Fourteenth Amendment. The Court had been amenable to this kind of argument, as attested to by its Lochner decision.

Building on the Court’s far-ranging discussion of women and their physical, social and legal differences from men, Brandeis, again presenting the state’s case, structured his arguments similarly to those offered in Muller, stressing the importance of a living wage to the health, welfare, and morals of women. Before the Court could decide the case, however, a vacancy occurred on the Court and Brandeis was appointed to fill it. Stettler was reargued in 1917 with Brandeis not participating. The Court divided 4 to 4, thus sustaining the lower court’s decision.

The next NCL-sponsored case, *Bunting v. Oregon (1917), attracted a significant amount of attention. Felix *Frankfurter, Brandeis’s hand-picked successor as NCL counsel, used the same kind of arguments Brandeis had used in Muller and Stettler. In a 5-to-3 decision (with Brandeis again not participating) the Court extended Muller to uphold an Oregon statute that established maximum hours for all factory and mill workers.

Although the NCL was victorious in these two cases, it had not anticipated the impact that the controversy within the suffrage movement over protective legislation would have on pending litigation. During the early twentieth century, women had come together to lobby for passage and then ratification of the Nineteenth Amendment. Once it was ratified, attempts were made to secure other rights for women. Women in the more radical branch of the suffrage movement, represented by the National Woman’s Party (NWP), proposed the addition of an equal rights amendment (ERA) to the Constitution. Progressives and those in the NCL were horrified because they believed that an equal rights amendment would immediately invalidate the protective legislation they had lobbied so hard to enact.

When *Adkins v. Children’s Hospital (1923) came to the Court, the NWP was ready. Adkins involved the constitutionality of a Washington D.C., minimum-wage law for women. The NWP filed an *amicus curiae brief urging the Court to rule that, in light of the Nineteenth Amendment, women should be viewed on a truly equal footing with men. The division among women concerning equal rights and protective legislation was now exposed to public view. It was a debate that was to be resurrected again and again in the Court and public through the 1990s.

In Adkins, the Court ruled 5 to 4 that minimum-wage laws for women were unconstitutional thus resurrecting Lochner, which Court commentators thought had been overruled sub-silentio in Bunting. The Court was unwilling to overrule Muller, and thus simply distinguished it because it involved (p. 384) maximum hours and not wages. Nevertheless, the justices clearly believed that the Nineteenth Amendment conferred more rights upon women than just the right to vote. In noting women’s newly emancipated status, the Court undoubtedly was responding at least in part to the pro-equality arguments offered by the National Woman’s Party.

Adkins, unlike Muller, was decided by the narrowest of majorities. But it stood as a good law and as a ringing endorsement of the notion of freedom of contract regarding minimum-wage laws for women until 1937 (although the Court continued to uphold state maximum-hour provisions). In *West Coast Hotel v. Parrish (1937), the Court finally abandoned its endorsement of substantive due process, explicitly overruled Adkins, and upheld Washington state’s minimum-wage law for women. In hammering in the last nail in the coffin of substantive due process, the Court also appeared to be escaping from the constitutional need to establish a difference between men and women.

While the Court was enunciating a view that men and women were equal as the permissible objects of regulation, clearly they were not. Most states continued to bar or limit night work for women. And while a separate minimum wage for women could no longer be valid, employer practices of clustering women into certain positions at far lower wages than those paid to men continued to exist.

No new cases came to the Court involving women’s rights until 1948. The NCL had obtained what it wanted, and the coalition of women’s groups that had pressed for suffrage had largely disintegrated. Women were urged to support the war effort and, after the war ended, to return to their homes to their traditional roles as wives and mothers. Thus, few groups were left to press for women’s rights in the legislatures or through the courts. The National Woman’s Party continued to press for equal rights, and in fact, was able to see a proposed equal rights amendment introduced into every session of Congress after 1923. But it chose to stay out of litigation until the 1970s.

New Attempts to Expand Rights.

In Goesaert v. Cleary (1948) and *Hoyt v. Florida (1961), the Court again made it clear that women were not guaranteed additional rights under the Fourteenth Amendment or elsewhere in the Constitution. Although the Fourteenth Amendment is a pledge of protection against state discrimination, over the years the Court generally has applied a two-tiered level of analysis to claims advanced under its provisions. Classifications based on race or national origin are considered *suspect classifications and are entitled to be judged by a severe test of strict scrutiny. As such, they are presumed invalid unless the government can show that they are “necessary to a compelling state interest” and that there are no less-restrictive alternative ways to achieve those goals. In contrast, when the Court applies the less stringent level of ordinary scrutiny, which until 1976 included all other legislative classifications, a state need show only a conceivable or reasonable rationale for its action.

Until 1971, the Court routinely applied this minimal rationality test to claims involving discrimination against women. In Goesaert, for example, it sustained a statute that prohibited a woman from dispensing drinks from behind a bar unless she was the wife or daughter of the bar owner. Thus, forty years after Muller, the Court continued to justify differential treatment of women by deferring to a state’s special interest in her social and “moral” problems. Under the reasonableness test, some rational basis for the law was all that needed to be shown.

In Hoyt, the Supreme Court accepted sex-role stereotypes as a sufficient reason to uphold a state statute that required men to serve on juries while women could merely volunteer for jury service (see trial by jury). When Hoyt was convicted by an all-male jury of second-degree murder for killing her husband with a baseball bat, she argued that her conviction violated her rights to equal protection of the laws and her *Sixth Amendment right to be judged by a jury of her peers. The Supreme Court disagreed, holding that the Florida statute was not an arbitrary and systematic exclusion of women. Justice John M. Harlan concluded that “Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life.” (pp. 61–62)

It was not until the dawn of the most recent women’s movement that judicial perspectives on what was reasonable discrimination against women began to change. In 1966, the *National Organization for Women (NOW) was founded. Soon after, a plethora of other women’s rights groups were created. Most of these groups renewed the call for passage of an equal rights amendment (ERA) to the Constitution. While significant lobbying was carried out on that front, some groups, cognizant of the successes that the NAACP had in securing additional rights for African-Americans through the courts, began to explore the feasibility of a litigation strategy designed to seek a more expansive interpretation of the Fourteenth Amendment. Although prior forays into the courts had ended unfavorably, some woman lawyers, in particular, believed that the times had changed enough for the (p. 385) justices (or some of the justices) to recognize that sex-based differential treatment of women was unconstitutional. Many believed that the status of women and the climate for change was sufficiently positive to convince even a conservative Court that some change was necessary.

The *American Civil Liberties Union (ACLU), long a key player in the expansion of constitutional rights and liberties, led the planning for a comprehensive strategy to elevate sex to suspect classification status, and thus to be entitled to strict scrutiny. Its first case was *Reed v. Reed (1971). Ruth Bader *Ginsburg, a member of the ACLU Board, argued the case before the Supreme Court. Her enthusiasm and interest in the expansion of women’s rights via constitutional interpretation led the ACLU to found the Women’s Rights Project (WRP).

At issue in Reed was the constitutionality of an Idaho statute that required males be preferred to otherwise equally qualified females as administrators of estates for those who die intestate. NOW, the National Federation of Business and Professional Women, and the Women’s Equity Action League all filed amicus curiae briefs urging the Court to interpret the Fourteenth Amendment to prohibit discrimination against women on account of sex. Democratic Senator Birch Bayh of Indiana, a major sponsor of the ERA, wrote one of the briefs in which he attempted to apprise the Court of the glaring legal inequities faced by women and to link those inequities, at least in part, to the Court’s own persistent refusal to expand the reach of the Equal Protection Clause to gender discrimination. Judicial decisions such as Goesaert and Hoyt, which allowed states to discriminate against women on only minimally rational grounds, made it clear to women’s rights activists that a constitutional amendment was necessary if women were ever to enjoy full citizenship rights under the Constitution. But Reed wasjustacritical first step.

Chief Justice Warren *Burger, writing for a unanimous Court in Reed, held that the Idaho statute, which provided “different treatment … to the applicants on the basis of their sex … establishes a classification subject to scrutiny under the Equal Protection Clause” (p. 75). With these simple words, the Supreme Court for the first time concluded that sex-based differentials were entitled to some sort of scrutiny under the Fourteenth Amendment. But what type of scrutiny? According to Burger, who quoted Royster Guano v. Virginia (1920), the test was whether the differential treatment was “reasonable, not arbitrary,” and rested “upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstances will be treated alike” (p. 76). The Court then found that the state’s objective of reducing the workload of probate judges was insufficient justification to warrant this kind of sex-based statute. In fact, according to the Court, this was “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause” (p. 76). Although the Court did not articulate a new standard specifically, most commentators agreed that sex-based classification were not to be treated with more than ordinary scrutiny.

This major breakthrough heartened women’s rights activists. It also encouraged the WRP to launch a full-blown test case strategy akin to the one pursued by the NAACP *Legal Defense and Education Fund that culminated successfully in *Brown v. Board of Education (1954). WRP attorneys jumped at the opportunity to assist the Southern Poverty Law Center of Alabama with the next major sex-discrimination case to come before the Supreme Court, *Frontiero v. Richardson (1973). At issue in Frontiero was the constitutionality of a federal statute that, for the purpose of computing allowances and fringe benefits, required female members of the armed forces to prove that they contributed more than 50 percent of their dependent husbands’ support. Men were not required to make a similar showing about their wives.

By an 8-to-1 vote, the Court struck down the statute, which gave male members of the armed forces potentially greater benefits than females. More important, though, four justices voted to make sex a suspect classification entitled to the strict scrutiny standard of review. While four other justices agreed that the statute violated the Equal Protection Clause, they did not agree that sex should be made a suspect classification. In fact, three justices specifically noted the pending ratification of the ERA as a reason to wait to allow the political process to guide judicial interpretation.

Three years later, in *Craig v. Boren (1976), Justice William J. *Brennan, author of the plurality opinion in Frontiero, formulated a different test, known as “intermediate” or “heightened scrutiny” test to apply in sex discrimination cases. Craig involved a challenge to an Oklahoma statute that prohibited the sale of 3.2 percent beer to males under the age of twenty-one but to females only under the age of eighteen. In determining whether this kind of gender-based differential violated the Equal Protection Clause, Brennan wrote that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives” (p. 197). He also specifically identified two governmental interests that would not justify sex discrimination: neither administrative (p. 386) convenience nor “fostering ‘old’ notions of role typing” (p. 198) would be considered constitutionally adequate rationalizations of sex classifications. Shedding many of the stereotypes that had been at the core of Muller, Hoyt, and Goesaert, the Court specifically noted there was no further place for “increasingly outdated misconceptions concerning the role of females in the home rather than in the ‘marketplace and world of ideas’” (pp. 198–199). Continuing in this vein, in Personnel Administrator of Massachusetts v. Feeney (1979), the Court even went on to clarify this new standard, noting that any state statute that was “overtly or covertly designed to discriminate against women would require an exceedingly persuasive justification” (p. 273). In Feeney, however, the Court concluded that a veteran’s preference law was intended to discriminate against non-veterans—not women.

This new intermediate standard of review subsequently was used to invalidate a wide range of discriminatory practices including some Social Security, welfare and workmen’s compensation programs, alimony laws, age of majority statutes and jury service exemptions. This is not to say that the Court no longer continued to be swayed by sex-role stereotypes. In *Rostker v. Goldberg (1981), for example, the Court considered congressional combat restrictions sufficient to rationalize the exclusion of women from the new draft registration requirements of the Military Selective Service Act (see conscription). A majority of the Court accepted the government’s position that the statutory exclusion of women from combat positions combined with the need for combat-ready troops was a sufficiently important justification to meet the burden of the intermediate standard of review. And, in *Michael M. v. Superior Court of Sonoma County (1981), the Court held that a California rape law, which applied only to males, did not violate the Equal Protection Clause. Justice William H. *Rehnquist noted that the state’s concern about teenage pregnancy was a sufficiently strong state interest to justify the statute. Rehnquist’s opinion pointedly did not apply intermediate scrutiny.

In late 1981, the Court was joined by its first female member, Sandra Day *O’Connor. It was not long before she and the other justices were faced with another sex-based claim made under the Fourteenth Amendment. *Mississippi University for Women v. Hogan (1982) involved a state policy that restricted enrollment in one state supported nursing school to females. Writing for the five-member majority, O’Connor noted that when the purpose of a statute was to “exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate” (p. 725). As one commentator noted, “she out-Brennaned Justice Brennan” (Williams, p. 112). For example, not only did she go further than Justice Brennan had in recent opinions by suggesting in a footnote that sex might best be treated by the Court as a suspect classification, she also went on to resurrect the Feeney language saying that the state fell short of “establishing the exceedingly persuasive justification needed to sustain the classification” (p. 724).

Justice O’Connor’s strong opinion in Hogan again brought to four the number of justices on the Court who apparently favored some sort of strict standard of review for sex-based classifications that need “exceedingly persuasive justification” to withstand challenge. The elevation of William H. Rehnquist to chief justice and the appointments of Justices Antonin *Scalia, Anthony *Kennedy, and David *Souter by Republican presidents, however, were taken by supporters of expanded women’s rights as a signal that the courts were no longer a viable strategy to see *strict scrutiny applied to sex-based classifications. Thus, supporters of women’s rights were heartened by the appointments of Ruth Bader Ginsburg and Stephen *Breyer to the Court by Democratic president Bill Clinton.

In 1994, shortly after Justice Ginsburg’s appointment to the Court, J.E.B. v. Alabama was decided. J.E.B. sought review of a lower court decision that had denied his claim that the use of peremptory challenges to exclude men from a jury deliberating a paternity claim against him violated the Fourteenth Amendment. Justice Harry *Blackmun, writing for the Court, concluded that the state was unable to provide the exceedingly persuasive justification needed to justify these gender-based peremptory challenges. The use of gender-based stereotypes to select a jury pool, said the Court, is prohibited.

By the late 1990s, it had become clear that a narrow majority of the Court had reformulated the intermediate standard of review announced in Craig, replacing a state’s need to show that a gender-based classification “serve important governmental objectives” with the need for a state to show an “exceedingly persuasive justification” for the practice or law. In United States v. Virginia (1996), a challenge to Virginia’s maintenance of the male-only Virginia Military Institute (VMI), Justice Ginsburg, writing for a five-person majority, used the exceedingly persuasive justification test in a manner “all but indistinguishable from strict scrutiny” (Brake, 1997, p. 35) to find the state support of VMI unconstitutional. Chief Justice Rehnquist’s concurring opinion echoed this assessment of the standard used by the majority. At the very least, it appears that gender-based classification will now be examined more skeptically than under the Craig standard. This (p. 387) “skeptical scrutiny” test recognizes the long history of gender discrimination and seeks to give substance to a standard used by the Court.

Still, under this standard, the Court has upheld challenged practices as constitutional. In Nguyen v. INS (2001), for example, five members of the Court concluded that a federal law that imposed different requirements for a child’s acquisition of citizenship depending upon whether the citizen parent was male or female, did not violate the Equal Protection Clause. Writing in sharp dissent, however, were Justices O’Connor, Souter, Ginsburg, and Breyer, who concluded that the INS had failed to show an exceedingly persuasive justification for the sex-based classification.

Recognizing the fragile nature of even the heightened middle tier standard of review and the Court’s uneven application of its standards, women’s rights groups continue to seek the addition of an equal rights amendment (ERA) to the Constitution, an effort that failed earlier. In 1972 Congress passed and sent to the states, a proposed ERA. By 1982, however, its supporters had failed to win ratification of the amendment in the requisite three-quarters of the states. Most see an ERA as the only way to guarantee that women ever will be recognized as fully equal under the Constitution, but they are not particularly optimistic about its chances of success, although members of Congress continue to introduce it in each session of the Congress.

The Court has never been at the fore in the development of full equality for women. Yet, its decisions clearly add to a climate that frowns on blatant discrimination. Given the increasingly conservative nature of the Court, however, and the increasingly complex patterns of discrimination that are being presented to it, it is unlikely that the scope of constitutional protections for women will grow unless other societal changes take place. Women’s active combat roles in the war in Iraq, for example, could possibly foreshadow a Court that would uphold a challenge to the discriminatory provisions of the Military and Selective Service Act.

Moreover, it is important to note that fewer and fewer cases involving constitutional issues of sex discrimination come before the Court each year, perhaps because women’s rights groups are using their time and money to fend off challenges to *Roe v. Wade (1973) and to keep *abortion legal. Moreover, most of the “easy” cases have been decided, and there is fairly uniform application of at least the intermediate standard of review in lower courts. Thus, most cases involving sex discrimination that the Court chooses to hear now involve employment or educational discrimination litigated under Title VII of the Civil Rights Act or Title IX of the Educational Amendments of 1972. In Johnson Controls, Inc. v. International Union, UAW (1990), for example, which involved a company fetal-protection policy that required women in certain hazardous positions to be sterilized as a condition of their continued employment, the Court ruled unanimously that the company’s policies were not valid bona fide occupational qualifications permitted by Title VII. Likewise, in Davis v. Monroe County Board of Education (1999), the Court found that a school board was responsible for sexual harassment and thus violating Title IX when the school board acted with deliberate indifference.

Deborah Brake, “Reflections on the VMI Decision,” American University Journal of Gender and the Law (1997), pp. 35-42. L.H. Butterfield et al., eds., The Book of Abigail and John (1975). Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women’s Movement in America 1848–1869 (1978). Sara M. Evans, Born for Liberty: A History of Women in America (1989). Susan M. Hartmann, From Margin to Mainstream: American Women and Politics Since 1960 (1989). Herma Hill Kay and Martha S. West, Sex Based Discrimination: Text, Cases, and Materials, 4th ed. (1996). Naomi B. Lynn, ed., Women, Politics and the Constitution (1990). Karen O’Connor, Women’s Organizations’ Use of the Courts (1980). Wendy Williams, “Sex Discrimination: Closing the Law’s Gender Gap,” in The Burger Years, edited by Herman Schwartz (1987), pp. 109–124.

Karen O’Connor