First No to Sex Bias

In dealing with women's rights, the Supreme Court has consistently reflected the prevailing spirit of the times. In 1873, for instance, one Justice wrote avuncularly of "the natural and proper timidity and delicacy which belongs to the female sex." As late as 1961, Justice John Harlan held that "woman is still regarded as the center of home and family life," and therefore has "her own special responsibilities." But the climate has changed, and last week the court unanimously held, for the first time in its history, that a law was unconstitutional because of discrimination based on sex.

Mrs. Sally Reed of Boise, Idaho, had been denied permission to serve as administrator of her deceased son's estate (worth less than $1,000) because a state law provided that "males must be preferred to females" when the two have an otherwise equal claim. As a result, her husband, from whom she was divorced, was appointed administrator. Writing for the court, Chief Justice Warren Burger found the preference for males "arbitrary" and in violation of the equal-protection clause of the 14th Amendment.

Laws treating various groups of people differently can still be valid, said Burger, but he specified that any such differentiation must have "a rational relationship" to the purpose of the legislation. The Idaho Supreme Court had found that the state law eliminated a source of controversy that courts would otherwise have to settle, but the U.S. Supreme Court found this an insufficient reason for favoring males over females as estate administrators.

The decision was immediately hailed by the American Civil Liberties Union as "an occasion in constitutional history," and telegrams of congratulation from other women poured in on Mrs. Reed, who was soon contending with a front lawn full of reporters. "We never dreamed it would go this far," she said of the case's modest origins. "I just cared about the principle of the thing. The courts don't give women the right to be heard. I hope more women will do what I did. Instead of complaining about the way things are, we've got to go into the courts and get them changed."

Battles Ahead. Despite Mrs. Reed's victory, advocates of women's rights still have considerable legal battling to do. for the court's opinion falls far short of announcing a broad general principle. Feminists had actually been hoping to see such a principle embodied in a proposed constitutional amendment banning all discrimination on the basis of sex. The amendment had passed the House earlier this year, but on the very day of the court's action, a Senate subcommittee substantially weakened the amendment by specifying that legal distinctions between the sexes could still be permitted if "based on physiological or functional differences."

There is relatively little dispute in the area of physiological differences, but "functional differences" are precisely what the advocates of women's rights think the law should not reinforce. They argue that the idea of all women having special "functions"--and all being treated as identical--is simply a result of old prejudices and still causes discrimination against women in such traditionally male activities as aviation, horse racing or police work. (The courts have already upheld laws that forbid women to work as bartenders.) And in the jobs they do have, women are often "protected" from earning overtime.

The Senator who added the weakening clause, Sam Ervin of North Carolina, has frequently argued that the constitutional amendment is unnecessary. He says that the 14th Amendment plus the Civil Rights Act of 1964, which governs employment practices, provide adequate protection for women's rights. Now that the Supreme Court has specifically applied the 14th Amendment to a case of sex discrimination, many Senators are likely to support Ervin's position.

A careful reading of the court's decision, however, lends weight to the feminist view that it may not be a very strong precedent, much less a substitute for a new constitutional amendment. The circumstances of the opinion--the fact that it was written by the Chief Justice and that it was unanimous--gave it the aura of a landmark. But the actual language was narrow. The court did not say that classifications by sex are inherently suspect, as are classifications based on race. It thereby left itself ample room to up hold such classifications whenever some kind of reasonable case can be made for them. Such a case must clearly be stronger than the one for estate administrators, but how much stronger remains to be seen.

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