Women and the Supreme Court in the 1970s and 1980s
The Republicans appointed to the Supreme Court beginning in 1969 were supposedly chosen for their devotion to judicial restraint and strict construction. Yet in the area of women's rights, they broke new ground as the earlier Court before World War II had done for blacks. In Reed v. Reed ( 1971), a unanimous Court, speaking through new Chief Justice Burger, invalidated an Idaho estate law that gave men preference over similarly situated women as administrators of estates. The Court found that such legislation effectively denied women the equal protection of the law. In Phillips v. Martin Marietta Corporation ( 1971), the justices decided that a company's refusal to hire women with preschool-aged children violated the Civil Rights Act of 1964, because the company policy did not apply equally to men. The justices in 1977 also relied on the Civil Rights Act to overturn an Alabama law that used height and weight requirements for prison guards to block women from such employment.
The justices have yet to extend the same standards of scrutiny to gender discrimination as they have to racial discrimination. They have refused, in short, to make gender a suspect classification, as is the case with race. Such status would mean that any time a legislature based its actions on gender it would automatically become suspect and subject to the most searching review by the Court. But the Court has rigorously applied the concept of equal protection of the laws. In Frontiero v. Richardson ( 1973), for example, the justices declared invalid provisions of the Fair Labor Standards Act and the Civil Rights Act of 1964 that exempted the military from granting to women the same health and housing benefits that went automatically to men. The justices came within one vote in this case of declaring that gender would be treated as a suspect classification.
The Court has taken the position that the state and federal governments may have some reasonable basis on which to invoke gender. The Court in Kahn v. Shevin ( 1974) upheld a state law exempting widows from a special property tax and in Schlesinger v. Ballard ( 1975) it gave women naval officers a longer period in which to win promotion than was given to male officers. Finally, in Rostker v. Goldberg ( 1981) it held, by a vote of six to three, that Congress could exclude women from the military draft.
The Court's decisions involving women were important in another way. They coincided with the effort to pass the ERA, and to some extent they may have contributed to its failure. Congress in 1972 sent the proposed amendment to the states for ratification within seven years. Within months about half of the states necessary for ratification had agreed, but enthusiasm waned, as was typically the case with amendments. Supporters of the ERA won an extension of the ratification deadline to June 1982, but by then only thirty-five states, three short of the required number, had ratified the amendment and it failed. Had the ERA passed, federal courts would have undoubtedly treated sex as a suspect classification.
Opposition to the ERA reflected substantial disagreement in the ranks of women
about the quest for equality. The most effective proponent of the campaign against it was Phyllis Schafly, an articulate and traditional woman who organized STOP ERA, a coalition of conservative groups anxious to retain the existing status of women. These same women were also vocal in their objections to Roe v. Wade, and they expected that the Reagan administration would help to pass an antiabortion amendment.