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Sexualités américaines

Claudine Raynaud

The United States Supreme Court and the Conventional Treatment of Sex and Sexuality

Richard Hodder-Williams

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  • 1 '... when the right to vote at any election... is denied to any of the male inhabitants of such St (...)

1The American Constitution is almost silent on matters of sex. The Nineteenth Amendment (ratified in 1920) is the only part which was intended to relate specifically to women (it forbids the denial of the vote because of a person's sex), but it does not in its language refer directly to women or females. Indeed, the only gender mentioned explicitly in the Constitution is masculine. The first section of the Fourteenth Amendment is well known (and I shall discuss it at some length later) and mentions persons. The second section is unsurprisingly forgotten, for it is concerned specifically with male citizens, threatening states which deny them the vote with a diminution of their congressional representation in proportion to the population of male citizens over twenty-one denied the vote.1 It is almost as though, in 1868, that part of citizenship involving electoral participation was presumed to be uniquely a male preserve.

2Things have moved on since then and the Nineteenth Amendment, despite its careful wording, was clearly a step forward on the road to sexual equality. But that equality has not been achieved, either through the formal process of constitutional amendment or through the informal process of constitutional interpretation (Rosenberg, 1961, 173-268). However, much progress has been made and that progress has occurred essentially as a result of a majority of the Supreme court redefining the equal protection clause of the Fourteenth Amendment ("no State shall... deny to any person within its jurisdiction the equal protection of the laws") so that it struck down many laws and regulations which differentiated on the grounds of gender. The process of redefinition lies at the heart of this paper. To summarise what I shall spell out in greater detail, a majority of the Justices in the period before 1970 held a view of women's proper and natural position in society which permitted differential treatment of men and women. In 1970, a different conception — a different conventional wisdom — prevailed.

3In order to appreciate the significance of this radical change in the Court's treatment of the proper role of the female sex, it is essential to consider the way the Court has approached cases involving the interpretation of the equal protection clause of the Fourteenth Amendment. The dominant jurisprudential principle employed to determine the meaning of the equal protection clause up until 1954 had been the'minimal rationality'test. Justices needed to assure themselves that the law or regulation being challenged met two requirements: it should relate to an activity which is a legitimate concern of a state and it should be a rational (that is, a logically defensible) means to achieve the state's goal. It was a test which it was difficult to fail. For a century the minimal rationality test principle supported state actions which were predicated on particular images of male and female sexes. As I shall show, the 1970's saw an important shift in the Court's view of what constituted a rational means and discarded several assumptions about the place of women in society. Alongside this change went a readiness to read into other parts of the Constitution values which significantly affected the reality of women's rights.

4Nevertheless, while there have been significant developments on this score, an image of women's' proper position' in society, as well as other images of 'normal' behaviour, remain alive, on occasions still wheeled out to confirm laws which differentiate according to a person's gender or sexual preferences. The same constitutional principles which have coloured the treatment of women have been used, with less liberal results, to deal with homosexuals. The story reminds us that Justices have a range of legitimate modalities, to use Philip Bobbitt's phraseology, which they can employ; which one they choose will decide the outcome (Bobbitt, 1991, 3-42).

5This paper is divided into four parts. Initially, I look at the processes by which the issue of sexual equality came before the Court. I then examine how sexual stereotypes rose and fell, but never quite died, before looking at the Court's treatment of homosexuality which now prevails. Finally, I want to consider whether constitutional amendments, such as the Equal Rights Amendment, would substantially improve the treatment of women in the United States or could be relevant to the claims of gay and lesbian Americans.

Interest Group Litigation

  • 2 The first eight amendments have been held to apply only against the federal government (even thoug (...)
  • 3 Two early classic studies are by Vose, 1958, 20-32; Vose, 1972.

6The American people are incurably litigious. In time, the most significant disputes in society do usually reach the Supreme Court. The first eight amendments, together with the fourteenth in particular, set down certain rights for individuals, which may not be abridged.2 They provide an invitation to aggrieved persons to challenge laws and regulations which they believe deprive them of one of the rights thought to be protected in those constitutional amendments. In a representative democracy, of course, the natural and expected forum for resolving political disagreement is through the ballot box, the legislature and elected public officials. But, when a group fails in these arenas, it has tended to press its case in the third branch of the tripartite system of government where possible.3 This is understandable and sensible, since the Supreme Court has the power, if it chooses to use it, to render null and void those laws which it finds to be unconstitutional; hence, if reversing legislation proves impossible in the legislature or the executive branch, reversing it through judicial fiat — which applies across all fifty states — becomes a very attractive alternative.

7The most celebrated group to employ litigation as a major part of its political activities has been the National Association for the Advancement of Colored Peoples (NAACP) (Kluger, 1976). It lent legal and financial support to Afro-Americans who felt that they were being deprived of the 'due process' and' equal protection of the law 'mentioned in the Fourteenth Amendment. It also entered cases on its own account by filing, with the supreme Court's permission, amicus curiae briefs which are offered by 'a friend of the court' to help the Justices see new facts or new philosophical arguments (Krislov, 1963, 694-721). Legislatures consistently failed to respond to African-Americans' attempts to translate the paper promises of the Fourteenth and Fifteenth Amendments into real equality. On the contrary, in the southern states of the old Confederacy, where most blacks lived in the nineteenth and early part of the twentieth centuries, legislation steadily reversed the progress made in the immediate aftermath of the Civil War, once troops from the north had been removed and the'carpet baggers'began to give place to local politicians. From the Redemption of 1877, southern legislatures passed many so-called' Jim Crow' laws which relentlessly disenfranchised blacks and introduced a form of apartheid which extended, literally, from the labour ward to the cemetery (Woodward, 1974). The principle of separation, supposedly given constitutional blessing when the Supreme Court enunciated its' separate but equal' principle in Plessey v. Ferguson (1896), became the norm (Plessy v. Ferguson, 163 US 537 [1896]).

8The denial of the vote to blacks inevitably destroyed their influence at the polls and, consequently, any hope they might have entertained of applying democratic pressure within legislatures. Much of their effort was therefore directed to obtaining the suffrage. The determination and ingenuity of southern politicians were such, however, that progress was slight and slow (Claude, 1970). As the twentieth century progressed, the Supreme Court examined the limiting devices of southern politicians more closely and, by scrutinising their consequences carefully, regularly invalidated southern attempts to exclude blacks from the voting booth. But the Supreme Court's decisions, while pointing in the right direction, in fact failed to enfranchise large numbers of blacks; administrative action by southern politicians together with violence and intimidation were successfully used to ensure exclusion. By 1950, if the truth be told, the victories before the courts had produced few substantive gains. And this was true, too, of the most famous NAACP triumph before the Supreme Court, the unanimous decisions in Brown v. the Board of Education of Topeka (1954, 1955) which buried the 'separate but equal' doctrine (in education at least) and asserted that racially exclusive schools contravened the equal protection clause of the fourteenth amendment {Brown v. Board of Education of Topeka, Kansas, 347 US 483 [1954]; 349 US 294 [1955]). However, it was not until the early 1970s that genuine desegregation took place in the deep south (Wilkinson III, 1979; Rosenberg, 42-54).

9Two points need to be made. First, by 1970 claims that discrimination was being practised against African-Americans evoked a special response from the Court. The 'minimal rationality' test, with its broad interpretation of what counted as rational, seemed incapable of protecting African-Americans from what were in effect, and normally intended to be, discriminatory state actions. The Court thus changed its jurisprudence; in the case of African-Americans, the 'minimal rationality test was replaced by the 'strict scrutiny test, which was applied when any law or regulation differentiated to the disadvantage of a 'suspect category. This test was a great deal more stringent. It required that the law or regulation concerned be not just a legitimate state interest but a compelling state interest and that it was not merely a rational means of achieving that interest but was necessary to the achievement of that interest. Such a test was almost impossible to meet. Few matters were essential state interests; and it seemed always possible that those interests could be achieved by other means. Hence, differentiation on grounds of race was always found to infringe the equal protection clause.

10Second, the crucial events which have done so much to dominate racial discrimination were not court cases but federal laws, most notably the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Open Housing Act of 1968 or the Twenty-Fourth Amendment, ratified in 1964, which prevented states from denying the vote to those who had failed to pay some part of their tax imposition. There is little doubt that the Supreme Court's decisions did much to alter the climate of elite opinion, but the failure of the judicial route actually to eradicate racial discrimination is a reminder that the power of the Supreme Court, although great, is limited by political realities (Hodder-Williams, 1995).

  • 4 The women's movement was particularly divided between those who claimed that the suffrage granted (...)

11The apparent success of the NAACP affected a generation of lawyers who were educated in the 1950s and 1960s to see litigation as one way of advancing a group's social and political agenda. Women activists before then had only very rarely considered that the courts might help their cause and had invested their efforts in attempting to influence all-male legislatures. The NAACP's experience, however, influenced many activists, and the women's movement enthusiastically translated this view into an energetic development of organisations committed in part to a litigation strategy (O'Connor, 1980). Women's groups, however, do not provide an exact parallel to the NAACP's experience. For one thing, they have been more disparate and less organised.4 The legal arm of the National Organisation for Women (NOW) was not formally incorporated until 1971, and even then it was both less well funded than the NAACP's Legal Defence and Education Fund and also more dependent upon volunteers for attorneys. Division within the organisation resulted in a splinter group (Human Rights for Women) being formed. Members of NOW had in 1968 established the Women's Equality Action League (WEAL) and this, too, split, the Women's Law Fund being established in 1972. Further, the American Civil Liberties Union, which had participated in a wide range of civil rights cases for many years, formed its own Women's Rights Project (WRP). There were yet other organisations created, especially after the issue of abortion became central to much litigation. An examination of the participants in the major women's rights cases before the Supreme Court after 1970 shows a very wide range of sponsors and providers of amicus briefs. Litigation was less a concerted effort to play the judicial route to success and more part of a veritable kaleidoscopic attack on sexual inequalities in American society by women's groups.

12A further difference is that African-Americans had litigated first and shamed the Congress into action, whereas women found Congress an ally before they turned to litigation. In 1963 Congress passed the Equal Pay Act; in 1964 the Civil Rights Act, although primarily concerned with discrimination against blacks, included in Title VII sex as a category against which discrimination was prohibited. This was actually added almost by accident, conservatives hoping that the introduction of sex in addition to race would help them bury the whole act; the liberals, however, called their bluff and took the amendment on board with little discussion (Taylor, 1966, in Tresolini and Frost, 85-97), a decision which undoubtedly helped the Act's passage but which later permitted the Court to emasculate some of its intention (Grove City College v. Bell, 465 US 555 [1984]). Political forces were generally running in favour of increasing women's rights in the late 1960s and early 1970s and on 22 March 1972 Congress adopted, by the necessary two-thirds majorities, the Equal Rights Amendment (ERA) ('Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex') and sent this proposed Twenty Seventh amendment to the states for ratification. After an initial spurt of approvals, the amendment became bogged down. Although Congress extended the time within which three-quarters of the states had to ratify to 30 June 1982, the ERA failed to win the required support and died (Boles, 1979).

13These introductory observations are intended to make very clear how inextricably entwined with politics the Supreme Court has become. More than ever, groups with their own particular interests consciously and deliberately use litigation to advance their public policy goals. The Supreme Court is dragged into the wider political process. Hence, it responds to shifting demands and changing values which are expressed through the parties litigating and the arguments they make. There is no necessary reason, it might be thought, why the Court's application of the Constitution should also change. But it has. And the reason is simple enough. The Justices themselves are a part of the full range of activities which cumulatively constitute the working American political system. Presidents nominate them; Senators confirm them; they are drawn from the same society from which new issues and new arguments also originate. It is rare for any single Justice to be as closely associated with a litigating group as Thurgood Marshall was to the NAACP, but they are tinged with the ideas which contemporaneously flourish in law schools, political clubs, élite Washington circles, and the academic community.

14The following section describes how, in the 1970s, two developments went along parallel paths. As the political clout of women and evolving standards relating to their place in society percolated through the political system into a series of challenges to many existing laws, a majority of the Supreme Court travelled the same: route. The change is reflected in a greater readiness not to defer to elected bodies (by scrutinising the rationality of their actions more closely) and in a consequential re-evaluation of the appropriate grounds upon which the treatment of women could be differentiated from that enjoyed by men.

Stereotyping Women and Justifying Discrimination: the first century

15Without specific clauses of the Constitution clearly relevant to sexual equality, women have, for the most part, had to appeal to a generalised meaning of the equal protection clause of the Fourteenth Amendment, which refers simply to 'persons'. This was not a promising route; whatever the precise purpose of the amendment might have been (and there is genuine dispute over this), it was certainly not explicitly intended to produce sexual equality (Grimes, 1979). Indeed, attempts by women at the time to include gender in the Fifteenth Amendment, which prevented states denying the vote to people on the grounds of 'race, national origin or previous condition of servitude', failed and explicitly so. The Supreme Court made it quite clear in 1873 that the Fourteenth Amendment could not be used to grant women what male legislators had denied them, when it upheld a law prohibiting women from being lawyers (Bradwell v. Illinois), and in 1875, when it upheld a law denying the vote to women in Missouri (Bradwell v. Illinois, 16 Wall. 130 [1873]; Minor v. Happersett, 21 Wall. 162 [1875]). The reasoning behind these decisions is critical.

16Government policies throughout the world are regularly founded upon some form of differentiation, between rich and poor, for example, on tax rates, on benefits, on allowances, and so forth. Although it is difficult, indeed impossible, to be certain precisely what those who voted for and ratified the Fourteenth Amendment actually intended the various clauses to mean, it is probably the case that the equal protection clause was essentially designed to enhance citizenship rights and was concerned above all with the equal treatment before the courts of African Americans. Judges have always known that laws bear unevenly on different categories of people; traditionally, they had been satisfied with a statute's constitutionality if it met the minimal rationality test. The early cases did not even reach that point (they effectively denied that state action in certain areas could even be reviewed in the courts on equal protection grounds) but the opinions of some of the Justices prepared the ground for future judgements. Thus, in Bradwell, Bradley observed 'a wide difference in the respective sphere and destinies of man and woman' and noted 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 fulfil the noble and benign offices of wife and mother. This is the law of the Creator'(Bradwell v. Illinois, at 141). In Happersett the Court unanimously agreed that the Constitution did not prevent the important trust of deciding who should vote from being left exclusively to men.

17The acceptance that differentiation on grounds of a person's sex was constitutional continued to be based upon contemporary stereotypes of the proper role of women in American society. All I need do here is draw attention to three cases which give a particularly good flavour of the Court's treatment of women's issues before 1971. In 1908 the Court, having just found unconstitutional a law which limited the number of hours a day which men could work, upheld an Oregon statute which limited the number of hours women could work (Muller v. Oregon, 208 US 412 [1908]); the apparent conflict between the two decisions is explained by the Court's acceptance of the rationality of the state's position that women need special protection as members of 'the weaker sex'. In 1948, in Goesaert v. Cleary, the Court upheld a Michigan law which required all bar-tenders to be licensed, but no women could be licensed unless they were 'the wife or daughter of the male owner' (Goesaert v. Cleary, 335 US 464 [1948]); here the rationality lay in the state's concern to preserve women (but not 'tougher' men) from moral contamination in what could admittedly be a lewd and violent profession. In 1961 the Court was faced with a claim under the Sixth Amendment, as applied to the states through the due process clause of the Fourteenth Amendment, when Gwendolyn Hoyt argued that she had been denied (in her trial on a charge of murdering her husband with a baseball bat) the constitutional right to be tried by her peers since the Florida law required all males, but no females, to be listed for possible jury service while including a provision which permitted women to volunteer their services if they chose (.Hoyt v. Florida, 368 US 57 [1961]); there were no women, who might have sympathised with her as an abused wife, on the jury. Here the explicit rationality was that women's familial obligations were such that obligatory jury service could well interfere with child rearing, In short, the Justices of the Supreme Court showed two distinct tendencies: to defer to elected legislatures, especially where differential treatment of women might be seen as conferring privileges, and to accept as a rational explanation for differential treatment between the sexes a stereotype of women which emphasised weakness, submissiveness, purity, and family responsibilities. The Court showed considerable ingenuity in ascribing to the state legitimate reasons for differentiating on grounds of sex, the primary rationale being 'protective'. This was the position which a clear majority of the Warren Court held, despite their liberal stands on so many other matters.

Challenging the Stereotype

  • 5 This may be a slight exaggeration for the time. Despite the contemporaneously decided liberal opin (...)

18The break came in 1971 in a unanimous decision authored by Richard Nixon's conservative nominee for Chief Justice, Warren Earl Burger. Richard Reed was an adopted child whose adoptive parents had separated; when he died before coming of age, not unnaturally intestate, Sally Reed sought appointment as administrator. So did her estranged husband. Under Idaho law, however, in such a conflict the rule was simple: 'As between persons equally entitled... males are preferred to females'. Sally Reed appealed right to the Supreme Court {Reed v. Reed, 404 US 71 [1971]). Her case was argued by Ruth Bader Ginsburg, who was then the major lawyer in the ACLU's Women's Rights Project and is now an Associate Justice. The Court's opinion could find no rational connection between the law's purpose — to regulate the administration of estates — and a preference for males over females; the equal protection clause of the Fourteenth Amendment had thus been violated. The Reed case, however, still rested essentially on the old philosophy that the test of constitutionality was met if a law could be interpreted as a rational means to a legitimate purpose. What had changed was that by 1971 a majority of the Justices had shed themselves both of the attitude towards women which effectively assigned to them a confining and home-based role in society and a deference to lawmakers as being intrinsically rational.5

19In 1973, a majority of the Court went further and decided two cases which marked unequivocally its enhanced concern for women's rights. First, in Frontiero v. Richardson, the Court came within a single vote of placing sex alongside race as a 'suspect category' and thus eligible for heightened scrutiny (Frontiero v. Richardson, 411 US 677 [1973]). Sharron Frontiero was an officer in the United States armed services. Unlike her male counterparts, however, she was not entitled as of right to housing and medical benefits, but had to show that her husband was as a matter of fact dependent upon her. The Government's defence was one of administrative convenience and a resort to stereotypic notions of the relationship between men and women; it argued that women's employment was additional to the male head of household's fundamental position as breadwinner and, therefore, did not deserve the special benefits designed for the primary income earner. Neither argument persuaded the Court. Although only one Justice dissented from the decision, only four accepted Justice Brennan's opinion that 'classifications based upon sex... are inherently suspect and must therefore be subjected to close scrutiny' (Frontiero v. Richardson, at 688). Had Brennan been able to capture the decisive fifth vote for this view, women would have enjoyed the same advantage as African-Americans in that a strict scrutiny of all differentiating laws and regulations would have been required.

20We need to pause a little here. Brennan did in fact come very close to achieving his goal of five votes. Douglas, Marshall and (surprisingly in view of his later votes) White were already on board. Powell felt that Brennan's draft opinion went too far, was too obviously policy-making and was unnecessary. Although he agreed that Sharron Frontiero had been improperly denied benefits on account of her sex (a position with which only Rehnquist disagreed), he kept to the rationality test of adjudication on equal protection claims. The important development was that the test had lost its 'minimal' prefix and the Justices were now seeking something more substantial than just any logically possible defence for a law; this position was supported by Burger and Blackmun. Stewart, therefore, held the decisive vote. A cautious, pragmatic conservative, Stewart felt that the time was indeed coming when sexual equality would have to be constitutionally recognised, but he wanted to develop a line of cases before making the principled break with the past in the way Brennan's opinion did. Furthermore, he was certain that the Equal Rights Amendment would be ratified and thus obviate the necessity of the Court's involvement (Woodward and Armstrong, 253-5). Unhappy about too great an exercise of judicial power, he preferred to follow the lead set in the national political arena. Two other Justices drew attention to the ERA and its passage as the proper way by which the American people should develop their Constitution to meet evolving standards.

21Moving with a shifting national mood is exemplified in another 1973 case, which is better known and has proved to be intensely divisive. In Roe v. Wade, the Court addressed the constitutionality of statutes which prohibit abortions (Roe v. Wade, 410 US 113 [1973]). It deliberated for long and called for reargument, which is rare; ultimately, a majority of the Court enunciated a complicated set of criteria which effectively established not an absolute right to abortion but clear limitations on state interference, permitting none in the first trimester, some in the second trimester, and considerable latitude in the third trimester. This decision was built upon an evolving right to privacy and the due process clause of the Fourteenth Amendment, rather than the equal protection clause at the heart of most sex discrimination cases. The story reflects again the way that the Justices, in the process of interpreting the Constitution, read into some of its clauses what they felt to be the common ground of their day. In Griswold v. Connecticut, a majority had decided that criminalising the use of contraceptives by married couples infringed their constitutionally protected right to privacy, even though the Constitution never mentions privacy (Griswold v. Connecticut, 381 US 479 [1965]); in Eisenstadt v. Baird they extended this protection to unmarried people, noting that the right to beget or bear children was a privacy right (Eisenstadt v. Baird, 405 US 438 [1972]); by the time Roe was decided, opinion polls and 'enlightened' opinion in Washington were moving quite strongly in favour of a right to an abortion (Barnum, 1985, 652-78). It was seen as another part of the combination of freedoms which were integral to the full equality of women. The autonomy which Roe underpinned was a far cry from the dutiful subservience in the interest of domesticity which earlier Justices had taken to be axiomatic.

22Following Roe, many states attempted to limit access to abortions as much as they could (by prescribing paternal approval, for example, or parental authorisation in the case of minors), but the Court initially stuck firmly to its position that the state had only limited rights in regulating pregnancy (Epstein and Kobylka, 137-298). Despite concerted attempts by the Reagan administration to get the Court to reverse this ruling and powerful arguments that the trimester approach was legally and scientifically unsound, a majority of the Court continued to watch closely any state's attempt to limit women's access to an abortion. Many women's groups hoped that the Court would establish a right to an abortion (if medically prescribed) for poor people, just as it had earlier established a right to a lawyer in criminal proceedings (in Gideon v. Wainwright, 372 US 335 [1963]), but their hopes remained unfulfilled (Harris v. McRae, 448 US 297 [1980]). The Court's approach to the question is to focus specifically on the proper, constitutional limitations to state intervention. As the personnel on the Court changed and nominees of conservative Republican presidents were confirmed (O'Connor in 1981, Scalia in 1986, Kennedy in 1988, Souter in 1989, Thomas in 1991), the balance between the woman's right (in Blackmun's view a fundamental one) and the state's right to regulate for both health and moral purposes began to tilt towards the state. But Roe was not overruled, despite the wishes of many conservatives. On the contrary; in Hodgson v. Minnesota O'Connor for the first time found a regulation which bore so heavily upon the woman that it imposed an undue burden on her and so deprived her of the abortion right set out in Roe (Hodgson v. Minnesota, 110 S. Ct. 2926 [1990]). Although no other regulation challenged in the courts has been interpreted in this way, O'Connor was joined by Souter and Kennedy in 1991 to reaffirm the constitutional right of an abortion first created in Roe, while at the same time attempting to devise a form of words that provided a clear message to the public about the principle which determines the balance between the two rights (.Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 [1992]).

23Let us return to 1973, with the women's movement on the rise and hopes of the Equal Rights Amendment high. The Court continued to strike down various laws which differentiated against women. In 1975, for example, the old jury decision upheld fourteen years earlier in Hoyt was overruled (Taylor v. Louisiana, 419 US 522 [1975]), and Utah's recognition of a different age for majority (18 for males, 21 for females) was found unconstitutional (Stanton v. Stanton, 421 US 7 [1975]) in 1975. Here James Stanton, who had divorced Thelma Stanton in 1960, was required under the divorce settlement to provide for his children until majority, but the daughter Sherri wanted to continue her education beyond 18, a wish which the Court accepted as quite normal and proper, rather than an aberration from the established female role. Hence, James was required to support her, too, until she was 21. The Court thus steadily moved throughout the 1970s away from its earlier position (that'the Constitution does not require legislatures to reflect sociological insight or shifting social standards') to the view, in 1979, that state actions' will not withstand constitutional scrutiny if they reflect the baggage of sexual stereotypes' (California v. Westcott, 443 US 76 [1979]).

  • 6 There is some ambivalence towards social data. A majority of the Court has been ready to accept su (...)

24The development was accompanied by a significant shift in the jurisprudential principles underlying sex differentiation cases. In 1976, in Craig v. Boren, the Court broke from its' rational means to a legitimate end' test to a more stringent one (Craig v. Boren, 429 US 190 [1976]). In Oklahoma, females were allowed to buy 3. 2 beer (beer with 3. 2 per cent alcoholic content) when 18, but males could only do so at 21. The rationale for this differentiation was that statistics showed that males were then ten times as likely as females to be arrested for drunken driving or public drunkenness. The Court was unimpressed. This infusion of subjective judgement can hardly be hidden; there was not merely the widely held, and intuitively sensible, view that young men were more prone to drink and drive recklessly but there were also statistics which, to a social scientist, indicated a positive correlation between young males, beer and road accidents. But some of the Justices remain unimpressed with social research based upon aggregate data but rather seek evidence that relates to a specific personal situation.6 Nevertheless, a majority of the Court now needed something very much stronger than that to uphold laws and regulations which differentiated on grounds of sex. After Craig differentiation on grounds of a person's sex, if it were to be constitutional, had to bear a substantial interest to an important governmental object. This intermediate standard of review is less stringent than the strict scrutiny required for suspect categories (like race) but more stringent than the traditional equal protection test. Since 1976, a number of cases have been decided in line with this new intermediate standard of review and most states have excised from their constitutions and their statutes the vast majority of provisions which differentiated on grounds of sex. But this does not mean that the sexes are treated similarly in every respect (widows and widowers still enjoy different privileges (see Bader Ginsberg in Blasi (ed.), 1983, 132-156; Williams in Schwartz, ed., 1987, 109-124). But progress has certainly taken place and the Court now recognises that women may have a constitutional claim against employers who sexually harass them, a position which was endorsed even by Rehnquist.

25It would be wrong to give the impression that the Court's decisions have been uniformly in favour of enhanced women's rights. One area of difficulty concerned pregnancy, a uniquely female experience. California's income protection programme for disabled workers (a Britishstyle sickness benefit scheme) excluded normal pregnancies, presumably on the grounds that these were voluntarily incurred and therefore not something against which one should properly insure. In Geduldig υ. Aiello (1974) the Court accepted that this differential treatment did not contravene the Fourteenth Amendment's equal protection clause (Geduldig v. Aiello, 417 US 484 [1974]). Two years later, the Court reaffirmed this view, holding that' classifications based on pregnancy are not, by themselves, illegal gender-based discrimination' (General Electric Co. v. Gilbert, 429 US 125 [1976]). The Court made the delightful distinction between 'pregnant women'(that is, a subcategory of all women) and 'non-pregnant persons'(among whom many women, as well as men, were to be found). What is of additional interest in this case is the manifest interest group nature of the litigation. Filing amicus curiae briefs on General Electric's side was a veritable battery of corporations which hired young female labour in large quantities, most notably banks and airlines; the potential cost to them of losing the case ran into many millions of dollars. The Gilbert case in fact was based upon complaints that Title VII of the 1964 Civil Rights Act, which outlaws discrimination on grounds of sex among other things, had been infringed; but the Court's definition of discrimination was an extension of Geduldig. Justice Stewart had been at pains then to argue that differentiation, especially in insurance cases, was entirely permissible; the state was under no obligation to insure against every possible disability. So long as there'is no risk from which men are protected and women are not' or 'from which women are protected and men are not', the state had not breached the equal protection clause's requirements (Geduldig, at 496-7).

26The Court continued to find constitutionally acceptable several state laws which, as a matter of fact, had consequences which bore more heavily upon women than men. Let me take two instances. Massachusetts enacted a law that gave veterans (people who have at some time served in the United States' armed forces) an absolute, lifetime preference for jobs in the state's civil service. The impact was obvious; when redundancies occurred, women, who had not served in the armed forces, were dismissed. But the Court found that the state had a legitimate right, if it so chose, to reward those who fought for their country; the fact that many more men than women had borne arms was an historical fact which happened to produce particular consequences. But the law's constitutionality, in the eyes of the Court's majority, was saved by the equally unarguable historical fact that women can join the armed forces and thus qualify as veterans for preferential treatment (Personnel Administrator v. Feeny, 442 US 256 [1979]).

27Slightly different was the case of Rostker v. Goldberg (1981) which concerned the constitutionality of a Congressional law designed to draft men, but not women, into the armed services (Rostker v. Goldberg, 453 US 57 [1981]). Here a majority of the Court deferred to Congress on the grounds that the judiciary was incompetent to make military judgements; yet William Rehnquist's opinion was not merely a matter of self-abnegation. He also stated that men and women' are simply not similarly situated for purposes of a draft or registration for a draft'(at 78). Active combat was deemed, by assertion, to be incompatible with a woman's acceptable role in life. Clearly this is arguable; many women in other lands do take up arms and many posts held by men could be undertaken by women, thus augmenting the male fighting power. The point is this: conceptions of the 'proper' role of women (and men) are not dead. And they surfaced again in Michael M. v. Superior Court (1981) when the Court upheld a Californian statute which punished more harshly males who practised underaged sex than females, on the grounds that the one sex was the instigator and the other the victim (Michael M. v. Superior Court of Sonoma County, 450 US 464 [1981]). Perhaps this is usually the case; but it surely is not always so. What is fascinating about this case is that both the majority and the minority claimed to be applying the intermediate level of scrutiny set out in Craig.

28For one set of Justices, the California legislature's differentiation did indeed bear a substantial relationship to a very important state interest; for another, while accepting the importance of the governmental objective, the means were not substantially related enough to that goal.

29These examples of the Court's permitting differential treatment which, either explicitly or implicitly, bore more harshly on one sex than the other raises a final point of some importance. In those cases decided upon 'equal protection' claims, the Court's position is grounded in the Constitution and can only be reversed by a Constitutional Amendment (such as the Equal Rights Amendment) or by the Court's reversing itself. In those cases dealing with Title VII of the 1964 Civil Rights Act, the Court's position is grounded upon statutory interpretation and can be reversed by Congress merely through a clarificatory amendment to the statute. The Gilbert case was so reversed. In 1984 the Court decided in Grove City College v. Bell that the federal government could not cut off all its grant to an institution if only part of that institution practised discrimination in violation of the 1964 Civil Rights Act. Congress immediately sought to reverse this ruling by amending the Act and impressive majorities were mustered in both houses. But, in the rush to complete many pieces of legislation in October 1984, the parliamentary delaying tactics of one Senator (without any sign of opposition to his actions from President Reagan) prevented a final vote being taken and the amendment died. However, Congress did not give up and a bill reversing that interpretation by the Court of the Civil Rights Act was ultimately passed. Since the principles upon which equal protection clause jurisprudence are based parallel the principles upon which Justices interpret Title VII of the Civil Rights Act, to constitutionalise — that is, put into a constitutional amendment — the statutory framework would be to exclude the Congress from correcting the Court should its application of an Equal Rights Amendment differ from the aspirations of its sponsors.

Homosexuality and the Supreme Court

30The advances which women made as a result of the reinterpretation of the equal protection clause in particular rested on two developments. One was the Supreme Court's readiness to challenge, and dismiss, many of the arguments about the special needs, special qualities, and special characteristics of females. The rational test was taken seriously within the dominant assumptions of middle class America of the late twentieth century; some of the differentiating legislation was simply thought to be irrational. The second was to distinguish women as a group needing unusual protection. Although Brennan only just — and one might argue unluckily — failed to persuade a majority of the Court that women, like African-Americans, should be considered a 'suspect category'(in which case 'strict scrutiny' would have applied), a new intermediate level of review did emerge and thus gave women a preferential position in the hierarchy of group rights. This level of review remained imprecise, as the opinions in Michael M show. Indeed, not all Justices accepted this new level of review; William Rehnquist, for one, continued to prefer the rational test approach and thus found it easy to uphold state laws and regulations which bore unequally upon women. In every non-unanimous case dealing with gender-based discrimination, he was to be found — sometimes alone — on the government's side against the woman's claim.

31Women's demands, however, seemed entirely reasonable to the majority of middle class America; after all, it was precisely its female members who were active! In other words, the conception of normalcy in social relations altered and those who differentiated on grounds of sex had to make out a very strong case if they were to prevail (as happened with the draft or, in some instances, the different treatment of widows and widowers) and even Rehnquist found some regulations irrational. When the issue before the Court shifted to claims of discrimination on grounds, for example, of homosexual or lesbian proclivities, the Court, albeit with the minimal majority, returned to an earlier tradition of judging the normalcy of the behaviour challenged. In fact, the Court has hardly been invited to examine the treatment of gay and lesbian Americans against the equal protection clause. One reason, perhaps, has been the late organization of gays and lesbians to offer a litigating strategy in the way that the African-Americans did half a century and women a quarter of a century ago. Nevertheless, regulations and executive actions have been challenged in the state and lower federal courts, but the Supreme Court regularly refused to grant certiorari. For instance, it denied certiorari in cases concerning the dismissal of schoolteachers because of their known sexual preferences.

32Discriminatory cases do not, however, only reach the Court through the equal protection clause (as the examination of gender discrimination cases has shown). The first major case of direct interest to homosexuals raised the question of whether the right to privacy created in Griswold and extended in Roe to be 'broad enough to encompass a woman's right to terminate a pregnancy' was sufficiently far-reaching to protect sexual behaviour between consenting adults against state laws criminalising such behaviour. The facts, as is often the case with Supreme Court decisions, are bizarre (this account is taken from Irons, 1988).

  • 7 The Georgia statute applied to both homosexual and heterosexual sodomy (defined as'any sexual act (...)

33Michael Hardwick had been served a warrant for not paying a fine imposed for drinking in a public place. Although he later paid the fine, the police officer nonetheless came to his house to deliver the warrant and was permitted entry by a resident. When the officer entered the apartment, he saw Hardwick enjoying oral sex with another man in his bedroom; an arrest was made on the grounds that the Georgia anti-sodomy law had been broken. Although no prosecution was made, the charge was not dropped and a Gay Rights interest group, with Hardwick's permission, decided to fight the Act's constitutionality through the courts. At length the issue reached the Supreme Court: did the Georgia Act, as applied in this case, deny Hardwick a fundamental privacy right? At Conference, the vote appeared to be 5-4 to strike the challenged portion of the law down.7 But Powell prevaricated. He would rather have applied the Eighth Amendment's protection against cruel and unusual punishment, but Hardwick, of course, had not been punished. He found it difficult personally to extend the logic of his own opinion, based on a right to privacy, which had reaffirmed the constitutional right to an abortion in Akron v. Akron Center for Reproductive Health (462 US 416 [1983]), to this case; he was sure that homosexual behaviour of this kind was never intended to be protected by the Constitution. This was certainly the view of White, who ultimately authored the Court's opinion (Bowers v. Hardwick, 478 US 186 [1986]). For him, the case could be differentiated from other privacy cases which were concerned with family, marriage and procreation. The idea that the right to engage in sodomy was 'deeply rooted in the Nation's history and tradition' or 'implicit in the concept of ordered liberty' was, for him, 'facetious' (at 194). It is said that Powell later admitted that he had probably made a mistake (Hall, ed., 1992, 80). What is clear, however, is that the critical determinative point for some of the Justices was a personal belief that sodomy between people of the same sex, however consenting and private, was simply not the kind of behaviour which the Constitution, in any of its clauses, was intended to protect.

34The next case of concern to gays and lesbians came to the Court quite fortuitously, rather than as the result of any effort by interest groups to create a set of facts which would raise the important issues of equality. Each 17 March there is celebrated in Boston the St Patrick's Day-Evacuation Day Parade to recognise the British departure from South Boston in 1776 and the numerous citizens of Irish ancestry in the city. It is organised by the South Boston Allied War Veterans Council. In 1992, several individuals formed the Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB) and asked to march in the Parade. The Council refused, but a state court overruled that decision. The same thing happened in 1993. In 1994, to prevent GLIB marching, the organisers cancelled the Parade. At issue was whether the Parade was an expressive act (in which case the organisers' First Amendment rights to arrange their own communicative event would be protected) or merely a public event subject to Massachusetts law prohibiting discrimination on the basis of sexual orientation in places of public accommodation (such as city streets). Between the cancellation of the 1994 Parade and arrangements for the 1995 Parade, the organisers had for the first time carefully drafted regulations which covered the Parade and which explicitly linked it to a celebration of what are widely considered to be traditional familial values. GLIB accepted that this excluded them and they did not request permission to march in 1995. The arguments before the Court were thus little about the rights of homosexuals and lesbians and largely about what counts as expressive activity in a public place and enjoys First Amendment protection (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Docket No. 94-749).

35The first case concerning homosexuals qua homosexuals was decided on 20 May 1996 (Romer v. Evans, 116 S. Ct. 1620 [1996]). What had happened was this. The Colorado legislature, and some other elected bodies in the state, had passed laws and ordinances which protected homosexuals against discrimination, when in 1992, voters in the state approved a constitutional Amendment which invalidated all such existing policies and barred both state and local governmental entities from undertaking any action to protect homosexuals in the future from discrimination. When this Amendment was challenged, the Colorado trial court and Supreme Court found it, for different reasons, unconstitutional.

36The Supreme Court upheld these judgements. It decided that the Amendment violated the Equal Protection Clause of the Fourteenth Amendment because, first of all, it singled out homosexuals as a unique class whose political lobbying could never succeed without persuading the electors of Colorado to amend the Constitution again and, in the second place, this special singling out bore no rational relationship to any governmental interest. As in Reed v. Reed, the Court was prepared to be pathbreaking by looking more closely at the defence of rationality than earlier courts had done.

37This does not, of course, mean that no differentiation can be permitted; homosexuals are certainly not, as yet, a 'suspect category'. Hence the military's policy of 'don't ask, don't tell', or the growing tendency on the part of states to deny recognition to out-of-state marriages between gays or lesbians, have yet to be tested. This is entirely to be expected. The 'Constitutional Dialogue', as Louis Fisher calls it, continues (Fisher, 1988), that is to say, the political process, which includes litigation as a potential strategy, responds both to discrete events, such as the decision in Romer, and to changing values.

38This brief examination of the Supreme Court's encounters with issues involving 'untraditional' sexual orientation serves well to emphasise the central points which I would like to make as a political scientist. First, the Court is but one part of an extremely complex and varied set of institutions and practices which in aggregate make up what might be called the American political system. In several states the rights of gay, lesbian and bisexual people have been protected through legislation and, on occasions, through state judges applying a more rigorous interpretation of the equal protection clauses of their own states' Bills of Rights than was the case nationally before 1970. In others, as in Colorado, the 'people' have endeavoured to reverse, permanently, such protection. This is, after all, what federalism is all about. Second, the Court's concern for such cases depends upon four Justices being willing to grant certiorari to appeals from lower courts and this, in turn, depends upon the type of person nominated to the Supreme Court. One result of the Nixon, Reagan and Bush presidencies has been to put on the Court Justices who, on the one hand, are less enthusiastic about double guessing state action than were a majority of the later Warren Court and, on the other hand, retain a set of values which, while more liberals than those of Justice Bradley in Bradwell, are not yet eager to enter a fight on behalf of homosexuals. But even they are effectively forced to consider high profile cases like Romer.

39Third, the tools for dealing with such cases are flexible. Claims of discrimination tend to be based upon the equal protection clause and, where this is not the case, the same kind of balancing procedures are used. The Constitution is imprecise; the Founding Fathers did not let us know what they originally intended on many matters; there is no objective set of rules and guidelines to help the Justices decide what is, and what is not, equal protection or due process or what the balance between the rights of state legislators to legislate and citizens to protect their rights might be. Justices are obliged to fill in these gaps, looking to past precedents, to the details of a case, to contemporary expectations and assumptions. Perhaps it should not be, but the Constitution is an evolving instrument and it evolves alongside, normally in parallel with, the changing majorities reflected in the political process. For the Court, although separate from the day-to-day hurly-burly of the politicians, is not a cloistered nunnery but a quiet place which, while it may often be at the centre of storms, does not stand immune while shifts of public opinion pass by. Indeed, if there had been widespread popular support in the early 1980s for gays and lesbians and a growing acceptance in élite circles that their sexual preferences were of no more significance to law-makers than their musical preferences, I have no doubt that differentiation on grounds of sexual preference would have been found contrary to the equal protection clause of the Fourteenth Amendment (Justice Rehnquist dissenting).

Supreme Court Power and the Equal Rights Amendment

40This brings me to a brief final observation about the intriguing, but unanswerable, question: to what extent has the principle of sexual equality been harmed by the failure of the Equal Rights Amendment? Put another way, would the Court have decided any of its cases differently if the ERA had been ratified? Legal scholars differ on this. Most tend to argue that the Court has, in effect, incorporated the ERA into the Fourteenth Amendment and, through its intermediate standard of review, already provided a constitutional shield against discrimination on the grounds of sex. I would not go as far as that; the way in which the standard was manipulated in Michael M. makes clear that much room is still left for Justices to give constitutional blessing to laws and regulations which some people would think were certainly discriminatory. But what I would argue is that the broad wording of the ERA would still have required constitutional interpretation by the Justices of the Supreme Court. It spoke of 'equality of rights under the law' but failed conspicuously to assert what those rights might have been. Since differentiation in constitutional law is not the same thing as discrimination, there will always be disputes over the legitimacy of particular differentiating practices. Any examination of how the equal protection clause has been applied to African-Americans (and virtually everybody accepts that this Amendment was designed to advance the interests of that segment of American society) would show that its reach is no less, and no more, than the Justices choose to apply.

41Let me conclude with one simple, but illustrative, example. Equal protection may be procedural, ensuring that public bodies and their agencies do not explicitly differentiate on grounds of race when making decisions affecting people of different races, or substantive, ensuring that the results of state actions have not differentiated on grounds of race. In the first case, it is increasingly hard to show, with evidence that would stand up in court, that a specific decision was motivated by racial bias. The Court address this boldly in Griggs v. Duke Power Company (401 US 424 [1971], decided 8-0) by shifting the burden of proof on to the employer where statistics showed that the number of African-Americans being employed was significantly lower than would be expected, given the proportion of African-Americans in the relevant employment pool. There is a genuine difficulty here. Rights, especially in the United States' culture, are essentially related to individuals, not groups. Yet, in order to protect rights, it may be necessary to move beyond the individual and examine what is happening to the group. However, there is no certainty at all that a particular woman, say, was discriminated against on the grounds of her sex just because the number of women actually employed in that job category was low. The Equal Rights Amendment would not have solved this problem. Justices would still have to decide where differentiation, which is constitutionally permissible, merged into discrimination. Those who are essentially suspicious of the good intentions of state governments and their agencies would regularly find infringements, while those who retain a faith in their democratic legitimacy and virtue would only find constitutional differentiation. For Chief Justice William Rehnquist, the result for women would not be very much different. He joined the unanimous decisions of Reed v. Reed (which found one form of differentiation irrational) and Califano v. Webster (which found a different form of differentiation permissible); he would most likely apply an Equal Rights Amendment with the same concern for the details of the factual situation and without the kind of absolutist assumptions which the Amendment's proposers were seeking.

  • 8 Justice Robert Jackson expressed this position particularly powerfully in his opinion in West Virg (...)

42The significance of the ERA is more intangible, more political. It represents an expression of principle. The reality of developments towards greater equality for women depends essentially upon social changes, positive and affirmative action by employers, changing cultural expectations. The courts have given support to developments in the direction of equality. But the major victories are won in the legislatures, which produced the Equal Pay Act and the Civil Rights Acts, and at the bar of public opinion. It is rare for a Supreme Court to act for long outside the parameters set by the dominant political forces in the nation's capital. The most visible conflicts between Court and politicians tend to arise over local legislation where there is no congruence between Washington values and, say, Alabaman ones. What makes Romer fascinating is that two sets of élites, one in Colorado and one in Washington, were pitted against a popular opinion measured by a state referendum. The Court's action is either a classic case of the fundamental purpose of judicial review and judicial independence (to place some rights' beyond the reach of majorities and officials'),8 as I believe it to be, or a classic instance of the imperial judiciary, to which Natham Glazer once called attention, for imposing its view undemocratically against a majority's wishes.



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Bobbitt, Philip, 1991. Constitutional Interpretation. Oxford: Blackwell.

Boles, Janet, 1979. The Politics of the Equal Rights Amendment: Conflict and the Decision Process. London: Longman.

Blasi, Vincent, ed., 1983. The Burger Court:: The Revolution That Wasn't.

New Haven: Yale University Press.

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Fisher, Louis, 1988. Constitutional Dialogues: Interpretation as a Political Process. Princeton, NJ: Princeton University Press.

Grimes, Alan, 1979. Democracy and the Amendments to the Constitution. Lexington: Heath.

Hall, Kermit L., ed., 1992. The Oxford Companion to the Supreme Court of the United States. New York: Oxford Universtiy Press.

Hodder-Williams, Richard, 1995. "The Supreme Court and its Democratic Moorings". (Paper presented at the Political Studies Association of the United Kingdom Conference, York: April).

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Kluger, Richard, 1976. Simple Justice. New York: Knopf.

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Nelson, William E. 1988. The Fourteenth Amendment: from Political Principle to Judicial Doctrine. Cambridge, MA: Harvard University Press.

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Rosenberg, Gerald N., 1991. The Hollow Hope: Can Courts Bring About Social Change?. Chicago: University of Chicago Press.

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1 '... when the right to vote at any election... is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States... the basis of representation therein shall be reduced in the proportion which the number of male citizens shall hear to the whole number of male citizens twenty-one years of age in such State'. Note also that in Article ΙII the president is always referred to as'he'.

2 The first eight amendments have been held to apply only against the federal government (even though only the first amendment specifically refers to Congress) and this was affirmed in Barron υ. Baltimore, 7 Pet. 243 (1833). In the twentieth century, however, most of the provisions of the first eight amendments have been'incorporated'into the due process clause of the Fourteenth Amendment and thus applicable against state governments and their agencies as well-See also Nelson, 1988.

3 Two early classic studies are by Vose, 1958, 20-32; Vose, 1972.

4 The women's movement was particularly divided between those who claimed that the suffrage granted by the Nineteenth Amendment gave women equality and that protective laws demeaned that equality and those who felt that, notwithstanding universal suffrage, the system was so male dominated that women needed legislative support to ensure that the theoretical equality was also real equality.

5 This may be a slight exaggeration for the time. Despite the contemporaneously decided liberal opinion in Phillips v. Martin Manetta Corp. (400 US 542 [1971], per curiam), Burger had apparently wanted to support the company's refusal to hire women with preschool children because he was sure that women with families just didn't work out as well as men (Woodward and Armstrong, 123).

6 There is some ambivalence towards social data. A majority of the Court has been ready to accept such statistical material to indicate prima facie discrimination in employment practices (for both African-Americans and women), but some members; of that majority have not been prepared to deduce discriminatory practice from similar statistics in different issue areas. Powell reflects this selective use admirably. While generally prepared to recognise past discrimination in the employment field from statistical evidence, he did not recognise the statistical argument in Craig, nor in the 1987 case of McCleskey υ. Kemp (481 US 279), where plaintiffs argued that statistical evidence showed that the death penalty at least in Georgia was being administered in a discriminatory fashion.

7 The Georgia statute applied to both homosexual and heterosexual sodomy (defined as'any sexual act involving the sex organs of one person and the mouth or anus of another'), but it was only its application in a homosexual context that was litigated.

8 Justice Robert Jackson expressed this position particularly powerfully in his opinion in West Virginia State Board of Education v. Barnette, 319 US 624 (1943):'The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the Courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to the vote; they depend on the outcome of no elections".


Professor of Politics and Dean of the Faculty of Social Sciences at the University of Bristol. Educated at Oxford, he has taught in African universities, at Berkeley in California and acted as the Mellon Professor of American Government at the University of Oxford. He is the author of The Politics of the US Supreme Court and a large number of articles and chapters on aspects of the Supreme Courts role in American politics. He is currently writing a book on the Reagan Administration's attempts to influence the Supreme Court's output between 1981 and 1989.

© Presses universitaires François-Rabelais, 1997

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