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WOMEN AND THE SUPREME COURT:

ANATOMY IS DESTINY

Nancy S. Erickson*

INTRODUCTION

The striking parallels between race discrimination and sex discrimination in the United States have not gone unnoticed by scholars. Many of the most famous suffragists-Susan B. Anthony, Elizabeth Cady Stanton, Lucretia Mott, the Grimke sisters-were active abolitionists, and the historical relationship between the two movements has been unique and complex.'

Perhaps the most well-known scholarly analysis of the similarities between racism and sexism is appendix 5 of Gunnar Myrdal's An American Dilemma.? At the beginning of that appendix, Myrdal explained its function as follows:

In studying a special problem like the Negro problem, there is always a danger that one will develop a quite incorrect idea of its uniqueness. It will, therefore, give perspective to the Negro problem and prevent faulty interpretations to sketch some of the important similarities between the Negro problem and the women's problem.

While Myrdal compared racism and sexism in order to illuminate racism, feminists have compared them in order to illumi. nate sexism. One of those feminists is Blanche Crozier, a 1933

A.B., Vassar College; J.D., Brooklyn Law School; Member, New York Bar; author of A WOMAN'S GUIDE TO MARRIAGE & DIVORCE IN NEW YORK, published and distributed by the Women's Law Center, 1414 Sixth Avenue, New York, New York 10019; of counsel to The Physicians Forum, amicus curiae in Geduldig v. Aiello, 417 U.S. 484 (1974). The views expressed herein are not necessarily those of the Women's Law Center or The Physicians Forum. The author invites readers' comments, which may be sent care of the Brooklyn Law Review, or directly to the author.

'The “first wave" of feminism, which began in the mid-nineteenth century, had close ties to both the abolitionist movement and the early labor movement. See E. FLEXNER, CENTURY OF STRUGGLE (1970). The "second wave" of feminism, which began in the 1960's, was generated in part by the Black civil rights movement, New Left politics, and the peace movement, among others. See J. HOLE & E. LEVINE, RE-BIRTH OF FEMINISM ch. 2 (1971).

? G. MYRDAL, AN AMERICAN DILEMMA 1073-78 (2d ed. 1962) (hereinafter cited as MYRDAL).

3 MYRDAL, supra note 2, at 1073.

"See, e.g., S. DE BEAUVOIR, THE SECOND Sex xxiii (1968); Crozier, Constitutionality of Discrimination Based on Sex, 15 BOSTON U.L. Rev. 723, 727-29, 742-44 (1935) (hereinafter cited as Crozier, Discrimination); Murray & Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 Geo. WASH. L. Rev. 232, 233-35 (1965). Reprints of this article are a ailable for $1.00 from the author, care of New York Law School, 57 Worth Street, New York, New York 10013. Copyright © 1974, Brooklyn Law Review; revised © 1975, Nancy S. Erickson. 209 * See Crozier, Discrimination, supra note 4; Crozier, Marital Support, 15 Boston U.L. Rev. 28 (1935); Note, Constitutional Law— Regulation of Conditions of Employment of Women. A Critique of Muller v. Oregon, 13 Boston U.L. Rev. 276 (1933).

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graduate of the Boston University Law School, whose articles on sex discrimination have remained startlingly current."

In the area of constitutional law, it is obvious that moves toward eliminating sex discrimination have always lagged far behind moves toward eliminating race discrimination. For example, the fifteenth amendment was enacted in 1870, while women (both Black and White) could not vote until 1920. The United States Supreme Court has declared classifications based upon race,' alienage,' and national origin' to be inherently suspect and therefore subject to close judicial scrutiny, while sex discrimination continues to be measured by the "rational relationship" test. Although there was a flurry of excitement in 1971, when the Court used that test to invalidate a sex-discriminatory State law, and the excitement increased when a plurality of the Court held classification on the basis of sex to be inherently suspect," set-backs soon followed, and, at the end of 1974, the prospects for full constitutional equality for women in America are still dim.

Why is this equality so difficult to attain? Myrdal hypothesized as follows:

In the final analysis, women are still hindered in their competi-
tion by the function of procreation; Negroes are laboring under
the yoke of the doctrine of unassimilability which has remained
although slavery is abolished. The second barrier is actually
much stronger than the first in America today. But the first is
more eternally inexorable.13
But the "function of procreation" in itself should no longer

See, e.g., Loving v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184 (1964); Bolling v. Sharpe, 347 U.S. 497 (1954).

? See, e.g., Sugarman v. Dougall, 413 U.S. 634 (1973); Graham v. Richardson, 403 U.S. 365 (1971); Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948); Truax v. Raich, 239 U.S. 33 (1915); Yick Wo v. Hopkins, 118 U.S. 356 (1886); Wong v. Hampton, 500 F.2d 1031 (9th Cir.), cert. granted, 417 U.S. 944 (1974).

* See, e.g., Oyama v. California, 332 U.S. 633 (1948); Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943).

• The Supreme Court's latest official word on this issue is its decision in Kahn v. Shevin, 416 U.S. 351 (1974), discussed at note 52 infra. The Court sidestepped the issue more recently in Geduldig v. Aiello, 417 U.S. 484 (1974), by holding that discrimination on the basis of pregnancy is not sex discrimination. See discussion at 267-81 infra.

10 Reed v. Reed, 404 U.S. 71 (1971).
" Frontiero v. Richardson, 411 U.S. 677 (1973).
12 See note 9 supra.
13 MYRDAL, supra note 2, at 1078.

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significantly hinder American women, if contraceptives are widely available" and if abortions are legal and safe. It is not woman's procreative function which is the stumbling block to equality, but the myths which surround that function and the societal structure which has been erected upon those myths-a structure which has existed for so long that it is seen as ordained by the Creator or as part of the unalterable scientific make-up of the universe, rather than as a man-made, and therefore changeable, construct.

Myrdal recognized and described some of these myths, which he called the ideology of paternalism, and he noted the familiar truth that the ideology of an economic system often lingers far beyond the demise of the system itself. However, cultural lag is not a sufficient explanation for the persistence of a paternalistic ideology so far into the development of an industrialized society.

Perhaps the paternalistic ideology of sexism has not been destroyed by industrialization, but has merely been slightly altered to fit the new economic base. Perhaps this is possible because industrialization is just another phase of paternalism. Whatever the reason, sexism is still very much a part of the structure of our society.

Most people have progressed to the point where they recognize the falsity of some of the most outrageous myths of paternalism and some of the most absurd aspects of the resultant societal structure. For example, it is now virtually accepted that women's hormones do not render them totally incapable of intellectual achievement in such formerly male-only areas as medicine, mathematics, law, and economics." It is further acknowledged that

" This assumption is not totally accurate. Availability of contraceptives is widely limited by statute. See DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, FAMILY PLANNING: AN ANALYSIS OF LAWS AND POLICIES IN THE UNITED STATES (1973), as updated by Family PLANNING/POPULATION REPORTER, published bimonthly by Planned Parenthood Federation of America, Inc.

15 The Supreme Court abortion decisions permit many limitations on abortions, including totai prohibition of all abortions in the "third trimester" of pregnancy, except to preserve the life or health of the woman. See discussion at 238-55 infra. Many States, in remodeling their abortion statutes in the wake of the Supreme Court decisions, have placed myriad restrictions on the right to abortion. See, e.g., L. 1974, ch. 991, adding section 4164 to New York State's Public Health Law.

" MYRDAL, supra note 2, at 1077.

17 Female achievement in these fields is still not encouraged, and the percentages of women in these professions is therefore still very low, although it seems to be increasing. In law in particular, women appear to be making great strides. See K. DAVIDSON, R. GINSBURG, & H. Kay, Sex-BASED DISCRIMINATION 881-85 (1974) (hereinafter cited as DAVIDSON, GINSBURG & KAY). The number of women students in United States medical schools has more than doubled in the past three years. Jenkins, Women in Medicine up Sharply, N.Y. Times, July 17, 1974, at 1, col. 6.

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when a woman and a man perform the same jobs, an employer should not be permitted to enrich himself unjustly by paying the woman less than the man. Thus, women theoretically are "permitted” to enter the professions and are supposed to receive "equal pay for equal work."18 It is obvious that practice does not always accord with theory, but at least the theories are accepted.

They are accepted, however, only reluctantly, and as undesirable exceptions to what ideally should exist-a society based on stereotyped sex roles." The "ideal" society is set up according

1 The acceptance of the notion of equal pay for women may not indicate an increased sensitivity to sex discrimination. It may merely be indicative of the impact of law (The Equal Pay Act, 29 U.S.C. $ $ 206(d) et seq. (1964)) on social attitudes. Or, it may even be a manifestation of self-protective male chauvinist attitudes, for if an employer is prohibited from paying a woman less than a man, an incentive for hiring women is removed. See Note, Constitutional Law-Regulation of Conditions of Employment of Women. A Critique of Muller v. Oregon, 13 BOSTON U.L. Rev. 276 (1933), for a discussion of how early State “protective” labor legislation, often hailed as progressive at the time, actually could have disadvantageous results for women. This is not to equate the Equal Pay Act, which is above criticism, with the State "protective" labor laws, which are now being held to conflict with title VII of the Civil Rights Act of 1964 (see, e.g., Rosenfeld v. Southern Pac. Co., 444 F.2d 1219 (9th Cir. 1971) ), but merely to point out that the motives for progressive laws are not always pure.

" This society is not only considered "ideal,” but is seen by many (and portrayed by the media) as the real American society of today. Such a degree of selective perception is frightening in its implications for social planning (or an absence thereof). The lack of adequate child care facilities in this country is only one illustration of the results of such thinking: in the face of reports which showed that thousands of American children had inadequate care because their mothers needed to work (U.S. DEP'T OF LABOR, WOMEN'S BUREAU, DAY CARE SERVICES: INDUSTRY'S INVOLVEMENT 6-7 (BULLETIN 296, 197), President Nixon vetoed a federal child-care bill, stating that the need for and desirability of child care centers had not been shown (see WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 1635 (Dec. 9, 1971), discussed in DAVIDSON, GINSBURG & KAY, supra note 17, 475-76.

Two actions on the federal level are seriously impeding the development and availability of child care programs. First, a ceiling of $2.5 billion per year was placed on federal expenditures for social services. Act of Oct. 20, 1972, Pub. L. No. 92-512, $ 301(a), 86 Stat. 25, amending 42 U.S.C. § 1320b (Supp. 1974). This ceiling has remained stable for two years, despite the fact that the need for social services has increased. Large industrial States such as New York were hardest hit by this ceiling because a State's percentage of the $2.5 billion was determined not by that State's previous utilization of services funds but rather on a formula based on population. New York State was expecting $850 million in federal reimbursement for the fiscal year 1972-1973, and received instead only $221 million. Federal reimbursement to half of the States was cut; the other half did not use the total funds allocated to them; the final result was that only $1.7 billion of the $2.5 billion was expended, and Congress refused to utilize the excess $1.8 billion to aid the States whose funds had been cut.

The second action on the federal level which threatens to restrict the availability of child care is the imposition of new HEW regulations concerning income eligibility levels

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