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Education." The Court in Muller summarized the "Brandeis brief" as follows:

The following legislation of the States imposes restriction in some form or another upon the hours of labor that may be required of women: [citations omitted].

In foreign legislation Mr. Brandeis calls attention to these statutes: [citations omitted].

Then follow extracts from over ninety reports of committees, bureaus of statistics, commissioners of hygiene, inspectors of factories, both in this country and in Europe, to the effect that long hours of labor are dangerous for women, primarily because of their special physical organization. The matter is discussed in these reports in different aspects, but all agree as to the danger. It would, of course, take too much space to give these reports in detail. Following them are extracts from similar reports discussing the general benefits of short hours from an economic aspect of the question. In many of these reports individual instances are given tending to support the general conclusion. Perhaps the general scope and character of all these reports may be summed up in what an inspector for Hanover says: "The reasons for the reduction of the working day to ten hours-(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home-are all so important and so farreaching that the need for such reduction need hardly be discussed."42

It should be noted that, of the four "reasons" given for reducing women's hours of paid employment, 43 only the first two even

"347 U.S. 483 (1954). See A. BLAUSTEIN & C. FERGUSON, DESEGREGATION AND THE LAW 126-37 (1957).

12 Muller v. Oregon, 208 U.S. n. at 420.

43 It should always be kept in mind that these maximum-hour laws dealt only with "employment" or "gainful employment," i.e., work for pay:

No law has ever attempted to prevent any woman, whether actually pregnant or one of the unmarried and sixty-year-old potential mothers of the race, from performing any amount of heavy work without pay. She may scrub clothes or floors any number of hours per day or night. As a farmer's wife, she may go into the field and replace a horse or a hired man. Doing no more than what countless women have done and still do, she may in combination with a full job of housework care for several young children all their waking hours, and be on call twenty-four hours a day and seven days a week. . .

Yet courts say that the new modern conditions of fatigue and strain in factory work justify the new regulations, which were not needed under the simpler conditions of the past. . .

The dangerous and immoral element in [factory work] must be the pay, for it is the only new feature. In fact, hard work for women, if unpaid, is in the

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to say nothing of the lower courts; and the date of one Supreme Court case which cites Muller is 1974!52 Even the opinions which do not cite Muller are embued with Brandeis' “mother-of-therace" theory, and this is especially obvious in cases involving reproduction and its control.53 Some of the more significant of those cases will provide the focus of this article. An understanding of those cases requires a discussion of Reed v. Reed," a case which failed to fulfill feminists' hopes that the spirit of Muller would finally be laid to rest.

II. THE "BREAKTHROUGH" CASES

A. Reed v. Reed

In 1967, Richard Reed died intestate in the State of Idaho, leaving less than $1,000 and survived by his estranged parents. His mother, Sally Reed, filed for letters of administration, but before the hearing on her petition, Richard's father Cecil also filed a petition. At a joint hearing on the two petitions, the Probate Court ordered that letters of administration be issued to

52 Kahn v. Shevin, 416 U.S. 351, 356 at n.10 (1974). Kahn is a case which merits careful study in a separate article, for the Court treated it outside the line of cases we are dealing with here.

The Florida statute challenged in Kahn, which gave a property tax exemption to widows (but not widowers), was declared unconstitutional by a lower court on the ground that it discriminated on the basis of sex in violation of the Equal Protection Clause of the fourteenth amendment. The Florida Supreme Court reversed, and that decision was upheld by the United States Supreme Court in a 6-3 decision. Kahn v. Shevin, 416 U.S. 351 (1974).

Justice Douglas, writing for the Court, pointed out that the median earnings of women lag far behind those of men (women's median earnings in 1972 were only 57.9 per cent of men's). Id. at 353 n.5. Such statistics, held the Court, justify a classification based on sex, where the purpose of such classification is to "cushion . . . the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden." Id. at 355. The Court implied in a footnote that the Florida statute, unlike the statutes in Frontiero (see discussion at 224-30 infra), was “designed to rectify the effects of past discrimination against women." Id. at 355 n.8. Thus, the Court treated Kahn as a case of "affirmative action' rather than as a case of sex discrimination. In so doing, the Court erred. The Florida statute does not aid women to achieve equality; instead, it assumes permanent inequality, as did "protective" labor legislation. Thus, it is in the mainstream of our paternalistic legal system. See Brief for Appellants at n.19, Kahn v. Shevin, 416 U.S. 351 (1974). Kahn is already have an effect in the lower courts. See Kohr v. Weinberger, 378 F. Supp. 1299 (E.D. Pa. 1974); Edwards v. Schlesinger, 43 U.S.L.W. 2009 (June 19, 1974); People v. Elliott, 43 U.S.L.W. 2106 (Colo. S. Ct. Aug. 20, 1974).

Geduldig v. Aiello, 417 U.S. 484 (1974); Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632 (1974); Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973). See discussion at 238-55 infra.

54 Reed v. Reed, 404 U.S. 71 (1971).

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[Vol. 41: 209 should be carefully scrutinized to see how the Court constructed this theory.

Nothing can be added to Crozier's brilliant criticism of Muller. However, a sad footnote must be appended to her observation that Muller had "paved the way for more and more restrictions upon women's freedom of contract."" Crozier was writing in 1933, only twenty-five years after Muller, and the cases which she cited as following Muller were already numerous.50 But since then, there have been many others in the Supreme Court alone,"

in order to preserve the strength and vigor of the race.

Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the school room are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him; but looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men, and could not be sustained. It is impossible to close one's eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal place with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions-having in view not merely her own health, but the well-being of the race-justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for longcontinued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifes a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her. See text accompanying note 39 supra.

" Id.

50 Note, Muller, supra note 39, at 279-82.

51 See, e.g., cases cited note 29 supra.

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to say nothing of the lower courts; and the date of one Supreme Court case which cites Muller is 1974!52 Even the opinions which do not cite Muller are embued with Brandeis' "mother-of-therace" theory, and this is especially obvious in cases involving reproduction and its control.53 Some of the more significant of those cases will provide the focus of this article. An understanding of those cases requires a discussion of Reed v. Reed," a case which failed to fulfill feminists' hopes that the spirit of Muller would finally be laid to rest.

II. THE "BREAKTHROUGH" CASES

A. Reed v. Reed

In 1967, Richard Reed died intestate in the State of Idaho, leaving less than $1,000 and survived by his estranged parents. His mother, Sally Reed, filed for letters of administration, but before the hearing on her petition, Richard's father Cecil also filed a petition. At a joint hearing on the two petitions, the Probate Court ordered that letters of administration be issued to

52 Kahn v. Shevin, 416 U.S. 351, 356 at n.10 (1974). Kahn is a case which merits careful study in a separate article, for the Court treated it outside the line of cases we are dealing with here.

The Florida statute challenged in Kahn, which gave a property tax exemption to widows (but not widowers), was declared unconstitutional by a lower court on the ground that it discriminated on the basis of sex in violation of the Equal Protection Clause of the fourteenth amendment. The Florida Supreme Court reversed, and that decision was upheld by the United States Supreme Court in a 6-3 decision. Kahn v. Shevin, 416 U.S. 351 (1974).

Justice Douglas, writing for the Court, pointed out that the median earnings of women lag far behind those of men (women's median earnings in 1972 were only 57.9 per cent of men's). Id. at 353 n.5. Such statistics, held the Court, justify a classification based on sex, where the purpose of such classification is to "cushion . . . the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden." Id. at 355. The Court implied in a footnote that the Florida statute, unlike the statutes in Frontiero (see discussion at 224-30 infra), was “designed to rectify the effects of past discrimination against women." Id. at 355 n.8. Thus, the Court treated Kahn as a case of "affirmative action' rather than as a case of sex discrimination. In so doing, the Court erred. The Florida statute does not aid women to achieve equality; instead, it assumes permanent inequality, as did "protective" labor legislation. Thus, it is in the mainstream of our paternalistic legal system. See Brief for Appellants at n.19, Kahn v. Shevin, 416 U.S. 351 (1974). Kahn is already have an effect in the lower courts. See Kohr v. Weinberger, 378 F. Supp. 1299 (E.D. Pa. 1974); Edwards v. Schlesinger, 43 U.S.L.W. 2009 (June 19, 1974); People v. Elliott, 43 U.S.L.W. 2106 (Colo. S. Ct. Aug. 20, 1974).

Geduldig v. Aiello, 417 U.S. 484 (1974); Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632 (1974); Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973). See discussion at 238-55 infra.

54 Reed v. Reed, 404 U.S. 71 (1971).

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[Vol. 41: 209 Cecil. The court's order was based, not on a finding that Cecil was better qualified for the job than was Sally, but rather, on a certain section of the Idaho Code which provided that, "[o]f several persons claiming and equally entitled to administer[,] males must be preferred to females. . . ."" Sally appealed to the appropriate appellate court, which held that section of the Idaho Code to be in violation of the Equal Protection Clause of the fourteenth amendment." But Cecil took a further appeal to the Idaho Supreme Court, which reversed the intermediate appeals court and reinstated the original order." Sally then appealed to the United States Supreme Court.

Chief Justice Burger, in an opinion expressing the unanimous view of the Court, held the challenged section to be in violation of the Equal Protection Clause. In arriving at this decision, the Court noted that the Equal Protection Clause does not prevent the legislature from classifying persons and treating the various classes differently. However, "[a] classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike'."58

What was the "object" of the Idaho statute? One would think that the broad objective of a law determining which relatives should be given priority, and in what order, in administering a decedent's estate would be to ensure that the most appropriate person be chosen. In general, the Idaho probate laws served this function by giving priority according to degree of kinship to the decedent, on the theory that the closer the relationship, the more of a pecuniary interest the person would have in the decedent's estate, and, therefore, the more care he or she would take to preserve the assets of the estate.5o

However, the particular statute challenged came into play only if two or more relatives of the opposite sex were in the same degree of kinship to the deceased; in such a case, the statute mandated that males be preferred over females. What was the "object" of this statute? As the Court noted, the Idaho Supreme

55 IDAHO PROBATE CODE § 15-314, quoted in Reed v. Reed, 404 U.S. at 73.

56 The opinion of the district court, Fourth Judicial District, is unreported.

57 Reed v. Reed, 93 Idaho 511, 465 P.2d 635 (1970).

58 Reed v. Reed, 404 U.S. at 76, quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

"Brief for Appellant at 66 n.76, Reed v. Reed, 404 U.S. 71 (1971).