Julia Penny Clark Memo October 1 1974

pc/sa 10/1/74

TO:

FROM:

MEMORANDUM

Mr. Justice Powell

P@Ht\’ Cla~Rwe.1.1, Jr.

DATE: October 1, 1974

No. 73·7S9 Edwards v. Hea.ly

No. 73•776 Schlesinger v. Ballard

No . 73-5744 Taylor v. Louisiana

These three ca es were grouped together for memorandum treatment because each involves the validity of a gender classification. One is a man’s challenge to a sex-differentiatac aspect of the Navy’s promotion system. The other two cases

are challenges to Hoyt v. Florida, 368 U.S. 57 (1961), end

the Louisiana practice of calling women for jury service only

if they volunteer. I have attempted to outline an approach

to sex discrimination that will harmonize with your opinions

on equal protection, with special attention to the role the

Court should play in this controversial area.

I , YOUR OPINIONS ON EQUAL PROTECTION

The opinions you have w:tttten, in chronological order,

are: Weber v. Aetna Ca ualty & Surety Co., 406 U.S. 164 (1972);

James v. Strange, 407 U.S. 128 (1972); McGinnis v. Royster,

410 U.S. 263 (1973); San Antonio Independent School District

Rodriguez, 411 U.S. 1 (1973); Frontiero v. Richardson,

411 u.s. 677, 691 (1973) (concurring opinion); In re Griffiths,

413 U.S. 717 (1973); Cleveland Board of Education v. LaFleur,

414 u.s. 632, 651 (1974) (concurring a-pinion). Although the

opinions vary, in that so use the classic two-tier review

and others avoid it, they outline a consistent framework of

equal protection principles.

Strict Scrutiny

You have not applied the “fimdamental

rights” branch of strict scrutiny, but the opinion ‘\n

odriguez limits it by holding that the doctrine applies oni~

to rights that are “explicitly or implicitly guaranteed by the

Constitution.” 411 u.s. at 33-34. As Justice Marshall notes

in dissent, id. at 100 n. 59, this limitation relegates the

“fundamental rights” doctrine to s small corner of equal

protection law. When a state classification intrudes on the

exercise of a fundamental constitutional right, it will .

frequently be invalid under the clause that guarantees that

right, without resort to the equal protection clause. In any

event, the “fundamental rights” doctrine ‘has no special role

to play in sex discrimination.

Suspect Classifications. In Rodriguez you outlined

the factors that govern the determination whether a particular

class should be labeled “suspect” for purposes of equal

“Protection law: whether the class is “saddled with such

disabilities, or subjected to such a history of purposeful

uneQual treatment, or relegated to such a position of political

powerlessness as to command extraordinary protection from the

majoritarian political process.” 411 U.S. at 28. In In Re

Griffiths. you followed the Court’s precedents declaring

alienage a suspect classification, but in Frontiero you resisted[

the plurality’s haste to declare sex a suspect classification.

Griffith outlines the analysis that applies to

~I legislation that discriminates against a suapect{the state

must have a constitutionally permistible and substantial purpose1

and the classification must be necessary to achieve it.

“Lower-Tier”

Your opinions have departed from the classic pattern of

“rational basis” review, a stated in McGowan v. d,

366 u.s. 420, 425~26 (1961):

?<-

Al though no precise formu a has been deve oped, t e

Court has held that the Fourteenth AmendmentsJ rmits

the St tes a wide scope of di cretion in nae ng

laws which affect some group of citizens d ff ntly

t others. The con titutional saf~~ rd is offended

only if the classification rests on ~ounds wholly

irrelevant to the achievement of the 3tat ‘ objectiv •

State legislatures are pr sumed to have scte within

their constitutional power despite the fact that, in

practice, their laws result in some inequality. A

statutory discrimination will not be set aside if

any state of facts reasonably may be conceived to

justify it. ·

Your first equal protection opinion, Weber v. Aetna Cas alty

& Surety Co., held that the eQUal protection clause reQuirea

“that a statutory classification bear some rational relation·

ship to a legitimate state purpose.” 406 u.s. at 172. This

Stat ment was taken by Justice Rehnquist, g. at 181, and by

Gerald Gunther (8.Dlong others), as a sign that the Court

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would make more active use of the equal protection clause.

Your subsequent opinions have elaborated on Weber. The

basic question ie “whether the challenged dietinction

rationally further.a some legitimate, articulated state purpose.”

McGinnis, 410 u.s. at 270. Answering this Question requires

two stages of inquiry: identifying the state interest, and

deciding whether the classification promotes it. As to the

fi:tst atage, McGinni refused to supply an “imaginary” basis

to uphold a statutory distinction, id. at 277. but your

opinion in LaFleur deviated slightly from the McGinnis auggastiort

that the state’s purpose must be articulated, stating that the

classification “must at least rationally serve some legitimate

fl::,

articulated or obvious state interest.” 414 u.s. at 653 n. 2

(emphasis added). From 1cGinnie comes also the proposition

that the state’s primary purpose ’11 not controlling for equal

protection analysis; a secondary purpose may also ~uatain the

classification. Finally; there is the obvious requirement that

the state’s purpose be constitutionally permissible ’11tis

requirement is usually implicit in the use of the word

“legitimate”, hut at times it emerges more clearly. For

inatance. James v. Strange recognized the state’s legitimate

interest in recouping the costs of providing counsel for

indigent defenda~te, but invalidated the harsh treatment of

criminal defendants because the state’s scheme smacked of

“punitiveness and discrimination.” 407 U.S. at 141-42. Your

opinion in LaFleur hinted that a school board’s delire to

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to keep children from seeing pregnant teachers would not support

the mandatory maternity leave program. 414 U.S. at 653. And

Weber, of coura9, refu1ed to let the state discriminate against

illegitimate children in order to punish their wayward parents.

406 u.s. at 175-76.

‘nle a cond stage of the inquiry–whether the classification

in fact promotes the state’s purpose–is more subjective. In

Rodriguez you rejected the contention that th classification

must fall if better alternatives can be found, 411 U.S. at Sl.

Nonetheless, exploration of alterna~ives is sometimes helpful

in deciding whether the characteristics of the class correspond

to the state’s purpose. If the classification is “irrationally

overinclusive”, as in r. Fleur, it may be impermissible even

though the state’s purpose is fully operative with respect to

some members of the designated class.

Dealing with overinclusive classifications is perhaps

the moat difficult problem in “lower-tier” eQ~ill protection

review. Classifications almost inevitably include some persons

whose individual characteristics do not fit the legislature’s

underlying purpose. But at least in “lower-tier” review,

the Court haa not demanded a perfect correlation. Dandridge

Williams, 397 u.s. 471, 485 (1970). In some areas,

particularly in ta,x “aoci 1 welfare” schemas, the Court

has been very tolerant of this overinclusivenesa. In Gi:th~s ,,

particularly the illegitimacy cases, ~ v. ~, 407 u.s. 1

(1971), and the “irrebuttable presumption” cases, it baa

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found the interests of the aberrant individuals to outweigh

the state’s rea$0ll for proceeding by classification. The

prinae examples are Vlandie v. Kline, 412 u.s. 441 (1973),

and Stanl y v. Illinoi , 405 u.s. 645 (1972), although both

disguised as due process cases. Chief Justice Burger’s opinion

last term in Jimenez v. w inberger, 416 u.s. —· 94 s.ct.

2496 (1974), is one of the few such cases premised on equal

protection. The •tate interest regularly asserted in thee

cases to justify an overincluaive classification is

administrative convenience because :ndividualized determitta-

tiona are often the only alternative to classifications,

Justice White views the problem in terms of the importance of

~t-,

the individual interest:

[I]t must now be obvious, or ha been all along,

that, as the Court’s assessment of the weight and

value of the individual i ·nte st es ca lat s, the

less likely it ia that mere administrativ

convenience and avoidanc of hearings or

investig tions will be sufficient to justify

wh t otherwi e would app ar to be rrational

discriminations.

Vlandis v. Kline, 412 U.S. at 459 (White J., concurring).

This rationale explains Stanley, and perhap.s Vlan i , but it

does not explain ~ or Ji nez, both of which appear to turn

on the sensitivity of the classification rather than the

importance of the individual interest. In -Reed the woman’s

interest in admirtietering her son’s estate was relatively

minor; in Jimenez the children’s interest in Social Security

payments was greater, but the case is too close to Dandridg

to allow distinctions ba1ed on the nature of the interest.

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rhe difference in intereets and hardahipa does, however,

seem to explain the Courtls continuing use of • “minimum

rationality” test for taxation and (perhaps) welfare ola•sificatiana.

You alluded to such cases in Rodriguez, 411 U.S. at

40•41, and quoted a 1940 case that required “hostile and

oppressive discrimination” to overcoma a tax claaaificatlon’1

presumption of constitutionality. The Court applied the eame

teat in Lebnhausen v. Lake Shore Auto Parts Co., 410 U.S.

3.56 (1973)’, and referred to it again in Kahn v. Shevin, 416

u.s. ____ , 94 s.ct. 1734 (1974).

I I. SEX DISCRIMINATION

~ and Frontiero have already taken discrimination

against women out of the “minimum rationality” standard of

review. They also have implicitly overruled the Court’s

earlier cases considered sex a permissible classification,

whatever the legislative purpose, Professor Kurland,

suggesting an approach to the Equal Rights Amendment, anticipstec

the Court’s current stance on sex discrimination:

The mere fact that there are two sexes should not

be re son in itself for distinguishing between

them in legislation. On the other handJ the

mere fact that a distinction was drawn betw en

them ought not suffice to invalidate the law.

Kurland, lbe Eouel Rights Amendment: Some Problems of

Construction, 6 Harv. Ci~. Rts.-Civ. Lib. L. Rev. 243, 249-SO

(1971). What the Court has not yet decided is what reasons

will justify gender distinction• and what role the Court

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should play in the moveinent toward sexual eouality.

Four members of the Court, of course, would declare

gender a “suspect classification.” The great bulk of current

law review commentary also argues (o

statu should b accorded to ~IMWP8″1!

assumes) that ”susp ct”

classifications. The

issue is usually approached in doctrinaire fashion. Aided

by philosophical essays comparing the status of women to that

of Negroes, the equal rights proponents contend that “suspect”

status is appropriate: women have been the victim9 of

discrimination and oppression, they are s discrete and

highly visible class (some even try to argue that women are

an “insular minority”), and they traditionally have had little

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voice in the political process. What is seldome explicit

in these discussions is the ultimate goal behind labeling

sex a suspect classification: the abolition of all, or

virtually all, distinctions between the sexes. One of the

leading articles on this point of view would concede only

a limited role for sex in legislation: laws dealing with

physical characteristics ‘Ul\ique to one sex. tm.der thi

umbrella the authors would place rape laws, laws relating

to determination of fatherhood, and few others. Brown,

Emerson, Falk, & Freedman, t:

A Constitutional sis for Eo al Rights for Women, 80 Yale

L.J. 871, 893·96 (1971), Others (though few are bold enough

to express moderate views in print) have a more limited

goal: the elimination of “those vestigial laws that work

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an injustice to women, ·that are exploitative or impose

oppressive discrind.nations on account of sex.” Freund, I!!!.

Equal Rights Amendment Is Not the Way, 6 Harv. Civ. Rts.•Civ.

Lib. L. Rev. 234 (1971).

The difference between the two camps is more than a

matter of goals. They also differ in their perception of

the judicial role. The activist groups see the courts as

the primary protectors of equality. They want the courts,

and this Court especially, to take the lead in eliminating

sex discrimination. They want a Brown v. Board of Education s

for women. What they often overlook are the differences

between racial discrimination and sex discrimination, and the

limits on the judiciary’s role in the latter area.

Although there may be some parallels between racial .

discrimination and discrimination against women, there are

fundamental differences. Women have never been an isolated

class. Although society has given women a distinct and, in

some respects, inferior role, women have participated in the

discrimination. Nor have women been completely isolated from

the political process. Although they were long excluded

from the process itself, they have always had ready access

to ita i>articipants. ‘ftle chief difference is that many

sex-based distinctions were written to protect women. The

protectionist laws have often been misguided, many are

anachronistic, and large numbers of women now consider them

insulting, but special laws for women were never intended

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to eliminate contact between the aexes. The discrimination

has had its psychological eff•cts, but they are different

both in kind and degree, from Jim Crow apartheid.

The moat critical difference between racial diacrimina·

tion and sex discrimination is that many women still want

and ne d the special protection of sex-based distinctions .

It might be reasonable to take the special protection away’,

from women of my generation, who have had much the same

educational and career opportunities that men have had.

Equal pay laws could take up the alack. But many women were

denied the opportunity to prepare themselves for eauality.

They want and need laws that give them economic protection,

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and it would be unwise, if not unjust, to take their protection

away in the name of equality.

For these reasons, the moveinent toward legal equality

for women requires political solutions. Until recently,

special laws for women accurately reflected the nation’s

social structure. As the social structure changes, the

laws will also change. But only legislation can acconmodate

the demand for equality with the continuing need for special

protection. The laws governing family ppoperty and support

arrangements are a good example of the limits on the judicial

process. Proponents of full .sexual e(1uality insist that the

aims of property and support laws can be achieved by rewriting

statutes in sex-neutral fashion. But a federal court cannot

declare that a state statute requiring a man to support hi1

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children should be construed to impose a support obligation

on a spouse who eams money. The court is limited to two

altematives: it can nullify the entire statute because it

discriminates against men. or it can hold that the statute

must apply to both fathers and mothers. The former result

would leave children without an enforceable right to support;

the latter would be unjust to women who have relied on their

I special legal status in choosing not to develop job skills.

It may/ ultimately be desirable to reshape society so that

both parents share the responsibility for supporting their

children, but the courts are unsuited to the task.

Finally, there is an essential irony in the activists’

?•:.

arguments. They begin by asking for “suspect classification”

‘• status, on the ground that the history of discrimination

I against women rectuires that courts give them extraordinary

protection from the majoritarian political process. The

same groups, however, would use the suspect classification

doctrine to strike down laws that discriminate against men.

There is surely no reason’to give men extraordinary protection

from the majoritarian political process. Since men have

controlled the political process all along. they have imposed

these discriminations on themselves. The only justification

for striking down laws that benefits women is an analogy to

the still questionable proposition that the Constitution is

color-blind. But the analogy has serious flaws. The history

of the fourteenth amendment can be mustered to support a

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judicial judgment tbat eQual treatment for the races demands

that the law avoid all racial distinctions. There ia no

explicit support in the Constitution for the proposition that

all sexual distinctions are verboten; that proposition depends

on an essentially social judgment. And that social judgm nt

falls outside the usual role of the courts under the eQual

protection clause.

Despite the _obje~tions t.o giving sex “s1111peet:” statu•

under the equal protection clause, the usual role of the. courts

can acconmodate a standard of review that offers more protection

than the old standard of minimum rationality. ~ and

Frontiero have begun the process by committing the Court to

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a more careful review of sex distinctions. True, neither case

purported to overrule Coesaert v. Cleary, 335 u.s. 464 (1948),

which approved “drawing a sharp line between the sexes” without

investigating the reasons behind it, or Muller v. Oregon,

208 U.S. 412 (1908), which suggested that woman’s “habits of

life” could be invoked in support of almost any sexual

distinction. But Reed disapproved a sexual classification

in an area where any other classification would have been

accorded only minimwn ‘review. For example, Oregon’s probate

statute provided that the children of the deceased would be

given preference over the par nts. There is no doubt that

the Court would have passed quickly over a parent’s claim

of discrimination. Nor can it be $aid that preference for

men over women was wholly arbitrary; statistical information

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would no doubt suet in the- state’s contention that men as •

class have more administrative experience than women a1 a

class. Although the Court did not say so explicitly, the

import of the opinion is th t sexual distinctions must be

supported by something more than assumptions about the re•peotive

roles of men and women. The result in Frontiero follows the

same principle, rejecting the assumption that married women

have no dependents because their hushands can be expected to

support theinselves.

Such an interpretation of -Reed. a nd Frontiero is consistent

with the Court’s proper role in preventing discrimination

against disfavored groups. Even though the discrimination

,,t1.

against women has not been as pernicious or pervasive as the

discrimination against racial minorities, it is historical

fact. Women are just now beginning to enjoy an active role in

the political process. Some sex-based laws have excluded

women from job markets; other have either encouraged or tolerated

discrimination against women in the private sector. There is

~ reason to tolerate delib~rate discrimination against women.

Moreover, the changing role of women in society demands that

the courts be increasingly sensitive to laws that draw sexual

distinctions. Assumptions about women’s behavior may no longer

correlate with fac.t, and legislation based on those assumptions

may be irrationally overinclu1ive.

‘111.e touchstmae of review should be injury to women. The

equal protection clause should not strike down laws that off r

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women protection. Frequently such protection can be viewed

as compensation for past discrimination •• !!bB, v. Shevin is

a good example of this kind of legislation, and the proper

reeponse to it, and Schle inger v . Ballard i1 an even stronger

case (to be diacuaaed fully in a later section). Laws that

giv women special privileges in the area of marital wealth

are not strictly compensatory, but they can be viewed as

legitimate protection for those women who were denied opt>Qrtunitiea

for self-sufficiency. Protective labor legislation

presents special problems. Some pr~tective laws offer

legitimate protection to women workers. Thus, a law prohibiting

employers from requiring women to lift specified weights could

be sustained. Other protective laws are economic discrimination

in disguise. For instance, one state had a law that

prohibited women from taking jobs that required them to lift

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more than 15 pounds. Some states have laws that prohibit

giving women overtime work, even at premium ~ay. Other state

still bar women from particular occupations. Title VII may

effect changes in these laws. Insofar as they require job

discrimination against women, the EEOC has ruled that employers

cannot follow them. They will nonetheless pose difficult

problems on equal protection review. If their effect ia to

protect women without excluding them from economic benefits,

they should be upheld. Bu,t if their major effect is to keep

women out of the job market o.r to preserve jobs for male

workers, they should be invalidated. For tho1e laws that

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effedt both discrimination-and protection. the best approach

may be to compare the harm of excluding willing women from

certain jobs, w1 th the harm of taking protection away from

those who want it.

15.

Other laws that protect women are subject to challenge

only by men. For example. the selective service 1aws work a

clear discrimination against men, but no women can claim injuey

as a victim of their discritnination. Some TJnTnQTI may perceive

insult in being excluded from “first-class citizenship.” but

I should hope something more would be required for standing.

The draft is such a touchy is·sue that the Court would be well

advised to avoid the question if possible. But if the Court

is forced to take a case on the question, it would be far

b8tter (symbolically) to hold that the equal protection clause

was not designed to protect the po• litical majority from itself

than to rely on generalizations about the respective roles of

men and me •

Whetl there is no pretense of protection and the discrimina•

tion is apparent on the face of the law, there will seldom be

a legitimate reason for making a sexual distinction. .;:;.S.-t==

Stanton, No. 73•1461 (appeal pending; on the discuss 11 t

for the October conference), presents a clear ca e of

discrimination ag•inst n without any pretense of protection.

The case ia a mother’s suit for child support. Appellant

and appellee were divorced in 1960. 11\e divorce decree required

appellee to pay $100 per month for each minor child’s support,

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The daughter turned 18 in 1971, and pp llee stopped contributing

to her support, Utah court• require child support only thl:’ough

the perlod of minority, and 1.5•2•1 Utah Code Amt. define• the

period of minority:

The p riod of minority ext d in mal s to the

21 y ar and in femal 1 to th t of 18 years;

but 11 minor obtain thier majority hy marriage.

The Utah Supr Court rejected appellant•• contention t t this

statute waa unconstitutional when applied to deprive females of

1upport at age 18, It justified the distinction on the ground

that “it ia a salutary thing for [the male} to get a good

education and/or t~aining before he undertsk a [the]

reaponaibil:ltiea” ,o f providing a home for hi family. Femal s,

the court said, “tend generally to mature pby ically, emotionally

and tally befor boys, and • • • they generally tend to

marry arlier.” Th earlier age of marriage, of course, a ot

support the distinction, since marriage end1 the support

obligation in any event. The only distinction left is th

notion that the state should give males an enforceable source

of support up to th ge of 21 so that they c educate th maelvee,

while the f le i• left on her own at age 18 bee uee

has a le ser n ed for education Pardon my out• ge. Thia

kind of aaeumption about b havioral differences b tween

, and e1,.cially. t aasumption that women do not

have to support t mselves. is at the heart of economic

diecn.mination again•t women. Moreover, the aaumption t t

women do not need education may no longer have a factual b ala.

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In 1973 52.3 percent of all women between the ages of 18 and

64 were in the labor force, and a 1ub1tanti 1 percentag of

th m w re the sol •ourae of eupport for themaelvea and th ir

children.

The Utah Supreme Court gave another r aeon for leaving

th diacrimination intact: if both male and femal a muat

be governed by the aame age rules, the court would hav no

baai for choo1ing 21 rath r than 18. Thi• could be a

significant problem in other states, but in Utah it is nothing

short of speciou1. .Another Utah statute, 78·45·2 Ut h Cod

Ann., imposes an obligation of support on both parents for

children of both sexes up to the age of 21. Even if the Utah

courts hav not applied this latter statute to poet-divorce

support obligations, it provides a aolid guide to the Utah

1 gi1lature’ wish that both males and femal 1 should be given

parental upport up to the age of 21. The exiatenc of this

statut• makes St ton an ideal case for resolving the question

of sex di crim.t.nation in aup~ort obligations. I recommend that

you note the appeal and rever••·

Other age dif ferential1 on the basil of sex may not

pres t the same problems. Many atatee pr scribe differ t

ag•a for marriage. for making contract• or buying liquor, or

for jurisdiction in juvenil courts. All euch claa ifications

should be subjected to a “1egitimate state int rest” teat.

S will be baaed on fact (for instance, different agea for

driv r licensing baaed on teen gers’ safety records). Othere

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may be baaed on the • aasurnption that the Utah Supreme

Court employed. If the age differential discriminates against

men; it should not stand unlea1 it is baaed on fact or an

as umption that accords with fact.

In aU1DDtAry, 1 would recommend using the “legitimate state

interest” formula in 1ex discrimination case , with a few

epeci 1 touch••· First, lawa that protect w or give them

special treatment should be sustained. Moat will be supported

by a 1 gitimate state interest in protecting the victims of

p st discrimination. Because of thi1 principlei a man’s

challenge to legislation that favors w n will seldom succe d.

If the law cannot be vi d as compensatory, the man’s

challenge should be teated by a “minimum rationality” atandard

b cau a there is no reason to give him special protection from

the majoritarian political process.

Second, laws that use sex as a classifying device without

good reasons (preferably factual) should fall under Reed.

Third, laws that discriminate againet woman will usually be

‘

” “11a\1.W under the “legitimate stat interest” standard.

Legi lative assumptions about women’s prope~ role should be

vie d with grave aul!lpicion. And finally1 laws that

discriminate against s women and protect others should

be analyzed with an eye toward reaching a rough acconnodation

of the opposing interests.

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I II • THE CASES

Sohl singer v . Ballard

Lt. Ballard 11 a Navy lieutenant. He was an enlisted

man for 7 years b fore h waa conmi1 ioned, and he has b n

an officer for about 10 y are. Becauee he bad been up fo~

promotion twic without being ele~ted, Lt. &allard wa1

1cheduled for diacharge in June 1972 under th Navy’• “up ‘or

out” program. He brought thi1 suit to enjoin the diacharg •

contending that he waa the victim of ex diacrimination b cause

I a female lieutenant could not be di charged und r the eame·

circumatancea, but would be entitled to a 13 year tenure •

an officer. If Lt. Ballard could claim the same 13 year1,

h could opt for retir t rather than di charge.

A thrae-judg district court was conv d. It first

i1aued a temporary r straining order to block Ball rd’• di •

aharg • Then, after n arly a year had pas1ad, it ia ued a

permanent injunction under.which Ballard has remained in th

Navy. If he can hang on until February, he will have accumulated

nineteen and one-half years of service, a tenure that would

ordinarily entitle him to retirement benefits. The Navy aaye

it do • not know wh ther the time under injunction will count

tow rd retire nt if thie Court reverses the lower court after

February.

The district court’• opinion ia diama1. The court de

no attempt to put the diacharg statute in context, but

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characterized it solely •• -a fiscal device to wee’ll. out a urplua

of N vy officere. Taking this narrow view of the legislative

purpose, the court could find no rational baaia for giving

women officer• a longel’ t ure. The court alao held that aex

wa a auspect claasificaticm under Fronti ro and that the

Fronti ro rule applies both to lawe that favor men and la a

that f vor wo n.

The government deserves part of the bl for the district

court’• superficial opinion. At the beginning it gave the

court very little information about the promotion syata11l.

th court’• opinion c out, the government apparently r lized

for th firat time that it risked lo1ing the case. It th n

filed two affidavt’ta and a motion for a ”new trial.” ‘!hie

motion was deftied. Appellee here argues that the affidavits

offel’ed after the case w 1 d cided’are not properly befor

this Court unle•• the district court abused its discretion

in denying the motion for n trial. Teclmically he is corr ct,

but the problem is subject to a large fudge-factor. Virtually

all the material in the post•decialon affidavits is subject to

judicial notice. It largely consists of statutory material•,

the history of the women’s program in the Navy. and stat:i tics

on th number of officers in various categorie1. The only

material in the affidavit• that ie not clearly subject to

judicial notice appears on pages 24A and 25A of the appendix.

‘this, too, may be aubject to an eXpanded standard of judicial

notice. But, in any event, it ie not essential to resolution

of the caae.

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21.

The discharge statute•- in isaue are 10 u.s.c. § 6382( )

and 10 u.s.c. § 6401. They are part of a complex 1tatutory

system goveming promotion in the Navy. I will describe it

aa briefly aa possible.

The Navy maintains separate promotion lin s for each of

a v ral categories of offic ~•· There i• one promotion lin

for Reserve officers, another for officer• in each staff

corpa <.!.. &• , JAG, dical Corpe • Nurse a Corp a) , and another

for “line” officers. Separate promotion line• are maintained

for male and female olficers in each cat gory except four of

10 ‘

the ataff corps. Each year the Secretary of the Navy conven e

a selection board ,f or each rank in each category. 10 u.s.c. ‘

§ 5701, .5702, .5704. From a list of eligible officers, th

aa1action board makes recommendations for promotion on the

basis of merit. By tatute, -a lieutenant must serve four years

in that rank before he is eligible for promotion, §§ S7.51(a)(4),

S752(a)(3), but the time-in-grade requirement for men was

suspended by executive order during the Vietnam conflict.

The number of lieutenants that can be promoted in a giv year

d pends on the number of vacancies in the rank of lieutenant

commander. II 5756, 5760(a), 5762(d), 5763. The DMkXimum

numb r of male lieutenant connnandera is set by statete.

15 .5442, 5447(a). The number of women officer is set by

the Secretary. § 5452.

After calculating the numb r of promotion• available in

a given year. the Secretary establishes a “promotion zone”

E-21

22,

with reference to anticipated personnel needs over a 5•year

peioiod. S S764(a) 1 (d). The “promotion zone” is a section of

the list of officer• eligible for promotion, arranged in order

of seniority. It do • not affect promotion eligibility; officers

below the zone are atill eligible for aeleotion. Its only

fmction r late• to the “up or out” program: it designates

those of ficera who will be deemed to have “failed of selection”

if they ar• not cho1en for p~omotion. I 5776.

The chief operative provi1ion ol the “up or out” program

is 10 u.s.c. I 6382, which appliea to all male line officer•,

to male officers in a 1taff col’pl other than the Nurse Corpa,

and to many femal staff corps officers. Subsection (a),

which applies to lieutenants, provtde1:

Each offic r on the active list of the Navy

serving in the grade of lieutenant, except an

officer in the Nurse Corpe • • • shall be honorably

discharged on June 30 of the fiscal year in which

h i considered as having failed of selection for

promotion to the grade of lieutenant COUIQ8.nder

•• for the second time. However, if he so

requeatsr he may be honorably discharged at any

time dur1ng that fiscal.year.

Subsection (c) provides for severance pay, to b calculated

with reference to length of service, but not to exceed two

years’ basic pay.

Women lieutenants appointed under 5 .5.590 (this includes

all women line officers and some wotaan staff corpa officer•)

are subject to involuntuy diacharge under I 6401:

Each woman officer on the active list of the

Navy. appointed under section 5590 of thi• title,

who holds a permanent appointment in the grade of

E-22

lieutenant • • • ahall be honorably diacharged on

June 30 of the fi1c 1 year in which·-

(1) h i not on a promotion list; and

(2) she has compl t d 13 years of active

comniaaioned service in the Navy • • •

~Ho er if sh so r qu ats, sh may be

~1- honor ble discharged at any ti during that

i cal year.

Separation pay is 24 times the officer’s monthly basic pay,

23.

but it may not exceed $15,000. Li•utenante in the Nurse Corps

(both male and f male) ar 1ubject to I 6396 , which is id tlcal

to I 6401 except for the maount of aepar tion pay.

There are two differ c • between I 6382 (a), on the on

aide, and II 6401 and 6396 1 on the other. ’11l most obviou

difference is the ti factor. A male lieutenant ia not

guaranteed a 13•year t nure under I 6382(a). If t ti •in•

grad requir nta ware not under au1penaion, h v r, th

w rage tenur of a male 11 utenant who had twice failed of

promotion would be 13 y ara: he would 1pend 3 years as en ign,

3 y ars ae a lieutenant (j.g.), and 6 yeara as a lieutenant

before being placed in a pi:oanotion zone the firat time. I 5768.

On mor year. making a total of 13, would pa•• before hi•

aecOltd failure of sel ction, The inequality la therefore

t result of an accel ration of promotion made nacesaary

by the Vietnam conflict.

‘l’he aecond difference is tht neither f 6401 nor I 6396

requir a that the offic r have “failed of selection” befor

involuntary diacharg • ‘I1l reason for this difference is

historical. Until 196 7 neither Hurse Corps officers nor wot11181l

E-23

24.

lin officers were covered by the “failure of selection” statute,

and the Secretary wa1 not authoriz d to establish promotion

zon • for women line officers. Act of Aug. 10, 1956, ah. 1401,

I 5776. 70A Stat. 361. Instead, women officers were eubject

to f orc d retirement after specified time perioda or at specified

ages, without regard to the number of time• they had been

eligible for promotion. Moreover, their promotional opportunities

were aeverely limited. Commander w 11 the highest

rank that aauld b occupied by a woman line officer, and th

number of women who could be prOQloted to comnander or lieuteoant

commander was limited by statute. In 1967 Congress removed

a lmoat all of th •• restrictions. Pub. L. 90-130, 81 St t.

~ …

The purpo•e of Pub. L. 90·130 was to authorize permanent

appointments of women to the rank of captain (Navy) and to

bring women’s promotions under th8 general •tandard~ that

governed men’s promotions. s. Rep. No. 676, 90th Cong., lat

Sass., at 2. The bill established the promotion zone system

for women and Nurse Corps officers and brought them under the

“failure of selection” con~ept. It is not et\tirely clear

from the legislative history why Congress did not go the full

distance and convert the 13•year “selection•out” period of

II 6396 and 6401 into a “twtce•fa:lled” provision. Both t

House and Senate ~ports acknowledge that the 13•year provi•

sion were being retained. noting that they “cloaely parallel

present provision• with respect to male of ficera •~capt that

the discharge of male officers probably occurs about 2 years

E-24

25.

earlier.” s. Rep. No. 676, supra, at 12; H. :a.p. No. 216.

90th Cong., lat Se••·• at 17. The only otlMar direct reference

to the 13•y .. r provision hints obliquely at the reaaon for

retaining it. ‘l1te House Report deecribea a severe crunch in

the Navy promotion lines:

A particularly sever problem of promotion

stagnation exists among WAVE offic rs in the Navy.

The present grad limitation on promotion of WAVE

officers to the grades of commander-lieutenant

commander have so r duced the vacancies that the

Navy will be foro d to di charge molt regular WAVE

11 utenanta when they reach their 13th ye r of

a rvice if r lief is not provided.

• • The Navy estimates that without legia …

lativ relief the attrition among women lin

lieutenants ;!11 average 50 percent or more over

the next 5 years. The Navy conaic:lers such heavy

attrition tmacceptable.

Rep. No. 216, supra, at 6. Unfortunately, it is not clear

that r taining the 13•year provision would have been expected

to eave more women lieutenant• than immediate adoption of •

“twice failed” system. No woman officer would have been considered

aa having twice failed until two years after the new

syatem ent into effect. It is poa ible that the line• for

promotion were o jamnad up that making room at the top would

not hav opened enough lieutenant conmandar poaiticna by th

aecond year. On the other hand, keepingtbhe 13-year system

would save the younger lieutenants from rapid attrition but

it Qould have forced out older lieutenant• pr maturely if

promotion• to lieutenant commander came too slowly.

E-25

26.

Despite this ambiguity, Congress probably thought retention

of the 13-year provision would be better than immediate adoption

of a twice-failed 1ystem, and it probably believed the Navy would

lose fewer women lieutenants over the short ruJt. The Department

of Def4Rl1e told the Armed Services conmitteea that it waa then

planning a major overhaul of the military officer promotion

systems. That plan is now pending in Congress as H.R. 12405,

93rd Cong., 2d Seas. The bill would establish an integrated

promotion system for male and female officers, making both

subject to discharge following the aecond failure of selection.

There ia one other difference between the program for

attrition of male lieutenants and that applicable to female

lieutenants. As in most other promotion categories for male

officers, the number of male lieutenants 11 limited by statute,

and the number of promotion opportUnitiaa for lieutenants

(j.g.) ia limited by the number of vacancies in the lieutenant

rank•. I S7S6. But the women’s selection board may recoD1Dend

all eligible lieutenants (j.g.) for promotion to lieutenant

without regard to vacancies. I S760(b). Consequently,

retaining male lieutenants for a 13-year tenure would force

increased attrition of ‘ lieutanants ~j.g.) under§ 6382(b),

which is identical to § 6382(a). Retaining women lieutenants.

on the other hand, would not be as likely to require whole•

sale discharge of lieutenants (j.g.) and instead might further

the Navy’s efforts to increase the number of women officar1.

E-26

27.

When seen in this context, Lt. Ballard’• claim of sex

discrimination is very w ak. First, the lines are not dr

solely on the baaia of sex. ty-1 ven female staff corps

lieut nants are aubject to the provision• of I 6’82(a);

v nty-six male Nurse Corpe lieutenants are given the advantage

of a 13-year tenure. Aa to lin lieutenanta, the category in

which there ie no croeaav r between the ay1te , it is clear

that the Navy i legitimately attempting to increase the numb r

Of WO • Thia program ia not invidiously di1criminatory.

ainoe its purpose is to overcome the ~ffects of past discrimination

against omen, both in recruiting and promotion. In thi

reep ct Ballard’• case parallel• Kahn v. Shevin.

~. —-

It is even stronger than !S!J!n v. Shevin in another r apect.

Lt. 8-llard ia complaining of only one aspect of a complex

system. He ia claiming for himself the one provision that

favor• f la lieut ants over male lieut81\ant1. In the context\.

of the entire system, he has not suffered discrimination. On

th contrary, he baa bean on the favored side in every other

respect. There ia no indication, out ide the integrated 1t ff

corp1, that male and female officer• compete for the same 1lot1.

Female officers ar atill ineligible for combat duty and moat

1 duty, I 6015, and would therefor be diaedvantaged in

head•to-head conipetition with le officer1. Con1equently,

the du 1 promotion 1ystem i~ itself justified by a legit t

gov rnmental interest, at least a• to an attack launched by

a male officer.

E-27

28.

The Louisiana Jury Cases

Article VII, § 41, of the Louisiana Constitution provide•

that “no woman shall be drawn for jury service unless she shall

have previously filed with the Clerk of the District Court a

written declaration of her desire to be subject to such service.”

Article 402 of the I.ouisiana Code of Criminal Procedure

implements this provision in criminal cases and until July 1972

La. Rev. Stat. 13:3055 implemented the constitutional exemption

in civil cases. The 1972 legislature repealed 13:3055 and

enacted a voluntary exemption for women with children under

16 and other women whose a.bsence from the home would cause

family hardship. A similar exemption was added to the code

of criminal procedure, but art. 402 was not repealed. Apparently

these statutory changes were designed to accompany a constitution•

amendment that would have re~ealed the women’s exemption, but

the constitutional referendum was defeated in the November 1972

election. The record suggests that the repeal of 13:3055 has

not affected the ”volunteers-only” system. .Appellees in

Edwe~ds v. Healy suggest that the special hardship exemptions

for women have been applied only to those who had already

volunteered for jury service.

In April 1974 the people of Louisiana approved a new

constitution. It does not contain any special exemptions for

women, but simply authorizes the Louisiana Supreme Court to

provide for juror exemptions by rule. The current draft of

E-28

‘

29.

juror rules makes no distinctions on the basis of sex. The

new constitution will take effect on January 1, 1975. No other

state has a ”volunteers-only” jury exemption for women like

that of the current Louisiana constitution.

Both Taylor and Edwards v. Healy arose in St. Tannnany

Parish, which, together with Washington Parish, comprises the

22nd Judicial District. Women constitute about 53 percent

of the population of the two parishes. In St. Tammany Pa.rish

women’s names are only 10 percent of the total in the jury

wheel. and during the twelve-month period from December 1971

to December 1972, only 13 of the 1850 persons drawn for petit

jury service were women. In Washington Pariah no more than

~·

two women have ever volunteered for jury service, and on only

one occasion has a woman been included in a petit jury venire.

Teylor v. Louisiana

Taylor was convicted of aggravated kidnapping in St.

Tannnany Parish in April 1972. The petit jury venire was all

male. Taylor moved to quash the venire on the ground that

it would violate his due process right to a. jury selected

from a cross-section of the community, but his motion was

denied. The trial court sentenced him to death, but Purman

Georgia was ~ounced whil his appeal was pending, and

the Louisiana Supreme Cour~ ordered the sentenced reduced

to life imprisonment. It rejected hie other claims, including

the challenge to the “volunteers-only” jury exemption for

women.

E-29

30.

Taylor argues on appeal that Hoyt v. Florida , 368 U.S.

57 (1961), should be overruled. He does not try to claim

special prejudice from the absence of women jurors; on the

contrary, his brief seems intent on hiding the facts of the

case. According to the Louisiana Supreme Court opinion, Taylor

forced his way into a car containing two women and a child.

Armed with a butcher knife, he made them drive to a deserted

spot, where he robbed them and raped one of the women. He

released them after they promised not to report the crime.

Edwar v Hee y

This case began as a class action for a declaratory

t.:~

judgment and injunction against the women’s jury exemption.

They attacked art. VII, § 41, of the state constitution, art •

402 of the code of criminal procedure, and 13:3055 (though it

had already been reμealed). There were to classes of plaintiffs:

(1) jury-eligible women in St. Tammany· ‘Parish who had never

been called to serve; and (2) jury-eligible men in St. Tammany

Parish. The women claimed that the exemption stigmatized

them, made it difficult for them to serve on juries, and

diminished the likelinood that they would have juries with

female representation if they should ever be involved in a

trial. The men claimed that they were doubly burdened with

jury service because women were exempted. The three-judge

district court did not rule on the standing of these two

classes, but indicated that their standing was doubtful

E-30

31.

because the two groups together represented almost the entire

body politic of the two parishes. The court granted standing

instead to a class of intervenors, represented by two women

who engaged in civil litigation in St. Tanunany and Washington

Parishes. And, having ruled that the intevenors could challenge

the exclusion of women from their soon-to-be-convened juries,

the district court proceeded to declare the exemption

unconstitutional in both civil and criud.nal litigation. It

held that the exemption denied equal protection to wo n

litigants and denied due process to all litigants. The court

held that Hoyt was no longer binding because it had been

undermined by ~ and Frontiero . Then it issued an injunction

A~–

in the names of all plaintiffs (but, curiously, omitting the

names of the intervenore) against the application of the

constitutional and statutory provisiOO:s. The judgment has

been stayed pending this appeal.

Feder 1 Law of Jury Exclu ion

The federal constitutional law of dttJry exclusion is

complex. There is, first of all, a limited use of equal

protection principles originating in Straud r v. West Virgi i ,

100 U.S. 303 (1879). Strauder was a Negro’s challenge to

his conviction under a Weit Virginia law that excluded Negroes

from juries. The Court held that trying Strauder before an

all-white jury violated the equal protection clause. The

Court reasoned that excluding prospective Nego jurors from

E-31

———-~—-

32.

participation in the administration of ju1tice resulted in

a denial of equal protection to Negro defendants. Because

white defendants would never be tried by a jury from which

members of their race were excluded, the Negro defendants

suffered a comparative disadvantage, stemming prilQ&rily from

the danger of racial prejudice. The Court noted two limitations

on its holding: (1) a defendant had no right to a jury com- ,

posed in whole or in part of persons of hie own race, but

only to a jury “selected and impanelled without discrimination

against his race or color, because of race or color”; and ‘ (2)

the fourteenth amendment does not prevent the •tat• from

prescribing juror qualifications such as gener, property ownership,

citizen1hip, age or education.

In Hernandez v. Texas, 347 u.s. 475 (1954), the Court

applied Strauder to the systematic excluaion of Mexican•

American•. Chief Justice Warren’s opinion for a unanimous

Court outlined a framework for the equal protection principle.

First, the defendant must be a member of the excluded class.

Second, the excluded class must be a distinct group that

1uffers community prejudice. Third, there 1111st be prima

facie evidence of systematic exclusion, In finding that

Mexican-Americans constituted a distinct, disadvantaged class,

the court swmnarized evidence in the record showing that

Mexican-Americana w re the victima of discrimination similar

to that suffered by Negroes.

E-32

33.

The equal protection principle has a much narrower scope

outside the area of racial and ethnic pr judice. In Fay v,

New York, 332 U.S. 261 (1947), involving New York’s uae of

”blue•ribbon” juries in difficult criminal cases, the Court

held that “(t]he inquiry under [the equal p~otection] clause

involve• defendant•’ standing before the law relative to

that of oth X”S accu1ed.” li· at 285. Since there wa1 no

evidence that blue-ribbon juries returned more guilty verdict•

than regular juriee, or that they were “organized to convict,”

the Court held there was no violation of equal protection.

‘:the due process limits on jury selection procedures are

no so well delineated. Before the sixth amendment wae applied

~.·,

to the 1tate1, the Court held that the right to jury trial

embodied the concept of the jury as a “body truly representative

of the conmmity.” Glasser v. United States, 315 U.S. 60, 85·86

(1942). Five years later in Fay v. New York. the court

con1picuou1ly applied a different standard to a state court

jury. Acknowledging that the fourteenth amendment did not

require jury trial in state criminal proceedings, the Court

held that if the state provided a jury. due process required

that it be “neutral,” th t is, the state could not use a

1y1tem of exclusions to impanel a jury before which defendant•

would have no chance of a decision on the evidence. Such a

proceeding would fall under the prohibition of “sham” trials,

332 U.S. at 288. Neither the excluaion of women nor the

disproportionate representation of working•claaa defendant•

E-33

34.

on the blue-ribbon jury was a violation of due process under

this atandard. Though it retained the rule that racial

exclusions were “presumptive constitutional violations,” it

held that other excluaions must be “such aa to deny a fair

trial before they can be labeled as unconetitutional.~ !!!•

at 293.

In~ v. Florida, 368 U.S. S1 {1961), the Court again

refrained from applying the croea-sectional principle as auch,

to state juries. Mrs. Hoyt waa convicted of killing her

philandering husband with a baseball bat. She appealed, 1

claiming that Florida’ a ”volunteers-only” system had resulted

in systematic exclusion of women from her jury. She clai•d

that women jurors would have been more sympathetic to her

defense of temporary insanity.

In an opinion by Justice Harlan, the Court formulated

a new standard for 1tate jury exclusions. Inatead of

delineating aeparate principles of equal protection 81\d due

process as in Fay v. New York, the Court spoke simply of the

fourteenth ll!Dendmant. Citing Hernandez v. Texaa and Fay v.

New York, the Court held that the fourteenth amendment requires

“that the jury be indiacriminately drawn from among those

eliglble in the community for jury service, untrammelled by

any arbitrary and 1y1tematic exclusions.” This principle was

not restricted to exclusions based on race or color, but

applied as well to “all other exclusions which ‘single out’

E-34

35.

any class of persona ‘for different treatment not based on

some reasonable classification.'” 386 U.S. at 59-60. The

Court held that an exemption could be the source of an

impermissible exclusion saying, ”Where, as here. an exemption

of a cl 11 in the community is sserted to be in substance

an exclusionary device, the relevant inquiry is whether the

exemption it1alf la based on some reasonable classification

and whether the manner in which it is exerci1able rests on

some rational found4tion.” Id. at 61.

It is not clear what constitutes a “reasonable” clasaifica•

tion, In federal ca1e1 1 the Court had held that the “general

principles underlying jury selection” prohibited excluding

a substantial portion of the cOIDDIUllity on grounds that were

irral vent to their capacity to serve on juries. Eligible

juror• could be excuaed only for 1ignificant hardship.

Thiel v. Southern Pacific Co., 328 U.S. 217, 223-24 (1946)

(exclusion of man working for a daily w ge). The Court had

also bald that the exclusion ~f women, where they were

eligible to serve violated the cross-sectional principle.

Ballard v. United St tea. 329 u.s. 187, 193•94 (1947) (Douglas.

J.). ;su~1both Thiel and B llard were federal cases, and the

Court r lied on federal statute• and its power to uperviae

federal courts. Justice Frankfurter, di11enting in Thiel,

suggested an outline of principles for jury selection. Trial

by jury presupp•••• a jury drawn from a pool representative

of the community and impartial in the specific case. Since

E-35

36.

race is unrelated to a person’s fitness aa a juror, Negroes

cannot be excluded solely because of race. But a group can

be exQluded for reaaona not relevant to their fitness if there

are ”competing coneid i:ations of public interest.” 328 u.s.

at 227. An early opinion by Justice Holmes had indicated that

a state could exclude certain occupational groups from jury

service if it believed that “it was for the good of the community

that their regular work should not be interi:upted.”

Rawlins v. Georgia, 201 U.S. 638, 640 (1906).

Although the use of terms like ‘.’arbitrary” and “reasonable”

suggeata that the atate•a exemption is to be judged on equal

protection standard•• Justice Harlan’s analysis in Hoyt seemed

1–<

to invoke the “good of the community0 standard. Because

“woman is still regarded as the center of home and family life,”

the Court held that the 1tate1 “acting in pursuit of the

general welfare, [could) conclude that a woman should be

relieved from the civic duty of jury service unless she heraelt

determines that such 1ervice is consistent with her own

special responaibilitie1.”‘ 368 U.S. at 62. The Court recognized

that Florida could have achieved this objective more narrowly

by exempting only those women with family reapon1ibilitie11

but held that the broad exemption was justified by the state’s

intere•t in avoidiitg the administrative burden of ruling on

each claim of exemption. -Id. at 63. The Court also concluded that the “volunteers-only” system was permiasible, either as

a means of fully effectuating the exemption by relieving women

E-36

37.

of the necessity of claiming it, or as a means of avoiding the

adminiatrative burden of processing individual claims of

exemption. Having decided that the exemption was based on

a reaaonable claseification, the Court held that the Constitution

wa• not of fended by the underrepresentation o.f woman in Florida’ a

jury pools.

Now that the Court hae held that the sixth amendment applies

to the atate11 Duncan v. Louisiana, 391 u.s. 145 (1968), there

i• preasure to hold that all the ”essential attributes” of

trial by jury in federal courts apply to the 1tatea. .§!.!.

Peters v. !!£!, 407 u.s. 493, 500 (1972) (opinion of Marshall,

J.) • The concept of a jury drawn from a croas-aection of the

community waa recognized aa fundamental in Glasser, and the

representative function of the jury was emphasized in Duncan.

-Id. at 156. The Court’• opinion in Williama v. Florida, 399

u.s. 78, 100 {1970)(White, 3.) 1 and Juatice White’• plurality

opinion in Apodaca v. Oregon, 406 U.S. 404, 412·413 (1972),

a110 sugg at that cro1a-sectional representation is fundamental

to the concept of jury trial. According to appelleea in

Edwards v. Healy, these recent developments require the Court

to overrule Hoyt and substitute Ballard in its place. But I

am not convinced that the Hoyt rule varies greatly from the

federal standard. Ballard reached a different re1ult1 but

it rests at least a• much on statutory grounds as on the

conclusion that an all-male jury pool is not a croea•eection

E-37

3.8.

of the conmunity. The Hoyt rule that a jury must be

indiscriminately drawn from those eligible in the conummity.

without any artibrary exclusions, could be read as an

alternative descriptiQn of the federal rule that a defendant

is entitled to a jury drawn from a cross•aectional pool, with

the addition of a rule allowing exemptions on competing considerations

of public interest. If Hoyt’s “reasonableness”

standard is read to coincide with the “public intereat”

tandard for exemptions, the difference between the two i1

18 .

slight. Nonetheless, Duncan and its progeny bring the

~problem into sharp relief. The reasonableness of a

state’s decision to protect its women from jury service must

J’

be judged in light of a criminal defendant•• right to a jury

drawn from a representative pool. Ballard’ s declaration that

the sexes are not fungible is a strong statement of the interest

that opposes the state’s concern for women. The major short•

coming of Hoyt is that it dismisses the defendant’s interest

too easily.

In the interest of keeping legal principles clear, I think

it is important to avoid the concept of standing in the due

process casea. The issue is not whether a male defendant

has standing to raise the omen’s claim that they are

discriminatorily excluded from juries. (Justice Marshall’s

opinion in Peters v. fil!, 407 u.s. 493 (1972), not:withstanding).

It is whether a defendant. male or femal • has a due process

right to a jury selected without systematic exclusion of o •

E-38

39.

Sex diacrilllination principles do not govern. the resolution

of the question, unless the “reasonabl sa” concept of !!!XS

ia held coextensive with equal protection analysis. The

question is not rely whether th re is a legitimate state

int•X”••t 1n xempting omen from jury duty, but whether that

interest is strong enough to juatify giving defendants a jury

that does not represent a cross-section of the community. To

that extent, the equal protection may be in1tructiva. Th

reasonableness of the xemption may depend on whether the

exemption ia irrationally overinclua~ve, or whether it ia

baaed on unsupported generalizations about women’ behavior.

Louisiana as erts only one interest in support of the

broad ex mption for women: “the state interest in the gen ral

welfare of its citizena and women as th center of home aad

family life.” State’s brief (Taylor) at 6. It contends that

the jury exemption is part of an attempt “to regulate and

provide stability to the state’s own idea of i amtly life.”

!!!· at 12. The state doe not suggest how jury service ia

incon i1tent with family stability or wo n’s family

reaponaibilitiea. Taylor and th• appelleea in Edw rds v.

H aly offer statistics to indicate that the state’s all-inclusive

exemption ia irrationally ovet’inclusive. If the state’s concem

is for mothers, it ha• ov rlooked the fact that S9 percent of

its adult female populati~ have no children under the age of

By the time of decision in Edw rds, Louisiana had alr dy

provided a special exemption for mothers of children under 16.

E-39

40.

That would surely cover any concern that children would be left

untended while their mothers served on jut:ie1. The state baa

also ignored the fact that of those women who do have children

under 18• over a third are in the labor force rather than at

home. Appellant’s brief ( lor) at 9. Moreover, the

”volunteers-only” ayatem may aggravate the overincluaiveneas

of the classification. If the state called o n for jury

service but allowed them to claim an exemption after being

called, it would probably get more wo en jurors than the mall

number. who think to volunteer.

The exemption might also be found unreasonable because

it l grounded on an overbroad generalization about women’

lifestyles.

based on assumptions about women • in ~ that they had le s

busine a experience than men, and ‘in Frontiero that they did

ttot have dependent husbands. Both assumptions would probably

hav accorded with atatiatical fact, but neither was held

adequate to sUpport a law that disadvantaged WOllrten. Strictly

speaking, this as ct of !!..J! and Frontiero does not apply

to jury exemption cases, there is no disadvantage to the

who choose not to volunteer for jury service, but the

n w suspicion of generalit:ationa about wo

~ and Frontiero have one other impact on lJoyt. The

.l2n. Court held that the br adth of the exemption and the

choice of a ”volunteers-only” system could be justified by

E-40

41.

the state• desire to avoid the administrative burdens of

either a “family responsibilities” exemption or a system that

required women to claim their exemptions individually. ed

and Frontiero have circumscribed the impact of admini•trativ

inconvenience in discrimination ca1ea1 and they are persuasive

here. Beeidea, Loui iana disclaims reliance on administrative

convenience. State’• brief (Taylor) at 11-12. There is also

suggestion that requiring women to claim an exemption when

having to cull their na a out of the lists that are u ad a

ource for jurors.

If the Court overrule• !J.2Il, in the context of Louisiana’

”volunteers-only” syatem, the deciaion will cast doubt on

the “opt•out” eyate used in five or six states, including

Virginia. nies atatea give wtime\il an absolute exemption ‘but

th m to claim it individually. Since the major fault of th

“volunteers-only” ayatem 11 it overincluaiv n sa with re1p ct

to the atat•’• interests, the “opt-out” states should prob bly

fare no better. Still, if ·the “opti-e>ut” sy tem produces a

higher proportion of women on jury venirea, it could be up ld

on the ground that th exemption does not cause substantial

exclusion of women. Thia is simply the converse of Hoyt’s

holding that an exemption would be invalid if it caused al\

unreasonable or arbitrary exclusion.

E-41

42.

Pr1bleme Raised by These case

overruling Hoyt would raise a serious practical probl m

in criminal cases, It 1• likely, if not certain. that every

inmate of the Louiaiana prisons waa convicted by a jury choaen

from a venir• compoaed almost entirely of males. It would

be unthinkable to make Louisiana retry them all. The state

should be allowed to rely on decisions aa ~•cent as !!!%£•

rhere are at least two methods of keeping the pri on doors

shut: requiring a suggestion of prejudic in individual cases,

or ruling that the decision will not’be given retroactive

effect.

The first alt rnative has the advantage of letting the

Court affirm Taylor’• conviction, since Taylor’s brief make•

no claim of special prejudice. There are seeds of such a

requirement in the caa • involving nonracial jury excluaione,

in particular, FaJ: v. New York. There the Court hinted that

the exclusion of working•claaa jurors, even if unreasonable,

would not require reversal.unless it could have affected

the outcome of the case. 332 u.s. at 292·93. The Court

distinguished the raci•l cases, in which it had never

requir d a showing of pr judice, on two ground1: first,

a federal statute prohibited jury exclusions on account of

race, and aecond, thsr is no reason to assume the existence

of hoatility betw en other ‘claaeea of juror• and defendants.

Both of these distinctions are still valid, and a “possible

E-42

43.

prejudice” rule could be applied in cases of nonracial exclu•ion

without affecting the .2!I. !!. rule in racial cases.

The major drawback of using a “possible prejudice” rule

to limit the effect of overruling Hoyt 1• the danger of

precipitating hundreds of federal habeaa petitions. It 11

not clear that failure to jbect to the venire would constitute

a federal waiver under Fay v. !21!.• If it does not, the federal

courts would have to make a factual inquiry in every case.

The other alternative, nonretroac,tiv,ity, would leave

untouched all convictions except Taylor’s. To my surprise,

1 found persuaaive precedent for a nonretroactive rule.

In Destefano v. Woods, 392 U.S. 631 (1968), the Court held

that an v. Louisiana and Bloom v. Illinois were not

retroactive. The ruling on Bloom is almost directly analogou

to the Louisiana case. Even though a nonrepre1entative jury

may be thought to have an effect on the integrity of the

factfinding process, the use of a “volunteers-only” exemption

for women was firmly established in law, and invalidating all

conviction• under the former practice would have substantial

adverse effects on the administration of justice. See ~.

at 634-35.

Ed rds v. Healy raise• two substanti 1 Questions that

do not appear in Taylor: (1) whether Strauder’s equal protection

principle should be applied to women, and (2) whether due

process governs the composition of juries in civil cases. It

may be possible to avoid both Queetions on mootne1s grounds.

E-43

44.

The new constitution will take effect on January 1. The

state supreme court has proposed jury exemption rules that

make no gender distinctions. Unle11 it change• those rules

before final adoption, this case will be moot as of January l.

The Court could either hold the case until then or give it

an ticipatory dismissal, as in DeFunis v. Odegaard, 94 S.Ct.

1704 (1974), when the Supreme Court•s rules are finalized .

The equal protection rationale of S,trauder and progeny

holds the moat promise for civil cases, since it does not

require due process supervision over state civil juri 1.

’11\e Court has already held, a.lbeit obliqUely, that racial

:,I.

exclusion is invalid in both civil and criminal ‘arias. The

Court has already held, albeit obliquely, that racial

exclusion is invalid in both civil and criminal juries.

Jury Commi sion of Greep.a Count)!’, 396 .U.S. 320 (1970).

carter

The r~.cionale of Strauder – comparing the poaition of Negro

litigants to that of white litigants – would apply to civil

cases as well as criminal, ·and there is no reason to suppose

that the potential for racial prejudice is diminished, although

it• conseouences are leas severe.

The only equal protection claim involved in the Edwards

appeal is that of the women litigants . Appelleea have not

pressed their earlier contention that the “volunteers-only”

system denies all women an equal opportunity to participate

in the administration of justice. The contention had no

merit; since any woman may participate equally by volunteering,

E-44

45.

no woman is excluded from jury service. Their claim that

the burden of volunteering waa itself a denial of equal

protection is also weak. Apparently all that is required ii

a letter to the court clerk. If the burden were subatanti,al,

such as a requirement that the woman appear in person to

volunteer, it might constitute a denial of equal protection.

But no such claim is made on appeal. Appellees have also

abandoned the contention that men are doubl’ burdened with jury

service because women are excluded.

An uncritical eye could find parallels between racial

exclusion and exclusion of women, and Hernandez supplies a

ready framework. But wo en are not quite as disfavored as

Negroes or Mexican-Americans, and there is less reason to

presume that male jurors will be harsher to female litigant&

than to male litigants. ~11 appellees offer in support of

their contention is a study that showed juries composed

predominantly of one sex tended to give larger judgments to

litigants of their own sex.. This is too weak to support a

Strauder extension.

The three-judge court glossed over the due process problem.

It held:

Similarly, it is unnecessary to e arch the

limits of th Constitution for a right to jury trial

in civil cases. “Once the State choo e to provide

grand and ‘Petit juries, whether or not con titutionally

reouir d to do so, it must hew to feder 1 constituti al

crit ria in ensuring that th selection of member hip

is free from racial bias,” Carter v. Jury Co isaion

of Greene County, 1970, 396 U.S. 320, 330, ••• and,

we add, every other type of unc stitutional

discrimination.

E-45

46.

This Court had adhered to its early cases holding that

the seventh amendment does not require juries in •tate civil

trials. Chicago, R.I. & P. Ry. v. £2!!_, 251 U.S. 54 (1919);

Walker v. Sauvinet, 92 U.S. 90 (1875). It is no solution to

say that if a state chooses to provide juries in civil ca1ea

it must follow federal standards governing their composition.

’11\e issue, as I see it, is whether due process limits the

composition of civil juries.

Although this Court has held that the right to jury trial

in criminal cases encompaaaes the right to a jury drawn from

a representative pool, Glasser v. United State ; 315 U,S. 60,

85-86 (1942), it has not en1hrined the ·ame principle as a

constitutional limit on civil jury trial. In ’11\iel v. Southern

Pacific Co., 328 u.s. 217 (1946), the Court reversed a civil

judglQ&nt because daily wage earners had been left off the jury

liata. Although it declared that the “American tradition of

trial by jury, considered in connection with either criminal

or civil proceedings, neceasarily contemplates an impartial

jury drawn from a cross-section of the community,” and spoke

of “the democratic ideals of trial by jury,” _M. at 220, the

Court baaed its holding on federal statutes and its “power

of supervision over the administration of justice in the

federal courts,” 14. at 225, rather than the seventh amendment.

But even if the requirement of a croaa-sectional jury is

considered a fund ntal part of the seventh amendment, it

would not follow that due process requires the same in state

E-46

—————– –

47.

civil cases. The function of the jury in criminal cases, aa

outlined in Duncan v. Louisiana, 391 U.S. 145 1 155-56 (1968),

ia “to prevent oppression by the Goverl’ID8nt.” But in most

civil cases the jury is simply a mechanism for settling

private di1putes. Due process would probably require an

impartial jury, just as it requires an impartial factfinder

in many state administrative proceedings, Goldberg v. Kelly,

397 U.S. 254, 271 (1970), but impartiality in this context

.probably means nothing more than an absence of actual bias

or prior involvement in the in the c~se. The requirement

of cross-sectional representation is not essential for

impartiality.

Recommendations

In Schlesinger v. Ballard, I would reverse the ground

that § 6401, in the context of the entire promotion system,

does not discriminate against male lieutenants.

In Taylor v. Louisiana I would overrule ~ v. Florida

on the ground that Duncan requires closer attention to the

principle of cross-sectional representation in state criminal

cases, and that, by analogy, recent cases on sex discrimina•

tion render the exemption irrationally overinclusive in light

of the state’s claimed interest. I would include in the

opinion a strong suggestion that the case will be applied

only to trials occurring after the date of decision.

E-47

48.

In Edwards v. Healy I would hold the case until the n.ew

jury rules are finalized. Then I would vacate the judgment

and remand for dismissal on ground of mootnesa, thus avoiding

the constitutional questions.

E-48

FOOTNOTES

Gunther. Foreword: In Search of Evolv ng Doctrin on

Changing Court: A Model for a New r Equal Protection, 86

Harv. L. Rev. 1 (1972). .@!.!. !1!.q_ Getman, Th Emerging Constitutional

Principl of Sexual Equality, 1972 Sup. Ct, Rev.

1.57. 162-63.

Fronti ro v. Richardson, 411 u.s. 677 (1971) (opinion

of Brennan, J.).

!•&•, GetJnan., supra.
!!_.. Note, S x Discr.imination and Egu 1 Protection: Do

We Need a Constitutional Amendm t?, 84 Harv. L. Rev, 14991

1507-08 (1971). Unlike sev ral other articles, this one

I ‘·

acknowledges that the pa~allel is not perfect •

.5. One of the bast statements of this view appears in

Profe aor ‘Kanowitz’• book:

Not only do 1 gal norms tend to mirror the eocial

norms th t gov rn male-femal relationships; th y

1 o exert a profound inf lu ce upon th develop•

ment and change of those social norms. Rule of

law treat of the sexes ~er se inevitably produce

inevitably produce far- aClifng effects upon social

psychologic 1 and economic spect of male•fe le

relationships b yond the limited confines of legislative

chambers and courtrooms. A long

organiz d legal B!St ms, at one the most respect d

and most feared of social institutions, continu

to differ ti t shat”Ply, iu treatment or in words,

b tween men and cm the b sis of 1 lev t and

artificially er at d distinctions. the likelihood

of men and w coming to regard on another

primarily s fellow human beings and only secondarily

as repres tativee of another sex will contin to

be r mote.

Kanowitz, Wo

4 (1969).

and the Law: The Unfinished Revolution

E-49

This Utah law, ha• now been repealed. Twenty-five

pOUnda may be the 1 st weight•lifting limit now extant.

Ohio Rev. Code I 4107.43 (1974).

7 • .§.•&•• Ohio R.eV. Code§ 4107.46 (1974). This statute

prohibits hiring women to work more than 48 hours p r week,

or 8 hours JHlr day, or 6 day1 r week. There are a number

of exceptions listed, including profe atonal peettiona.

may work in moi:”e than one jiob , but only if the aggregate hours

of work do not exceed 8 per day or 48 per k.

Again, Ohio ie tha chief vil,.ain. Women may not work

in any of the following jobs: crossing watchman, section d,

bell hop, night-time taxi driver, or metei: r ader. They may

not be employed in blast furnaces, 1melter1, mine• or quarries

(except as office work rs), in shoeahine parlor•, or in

drinking eatabli1 ta with excluaively male customers.

’11ley may not work in delivery aervice,on vehicles over 1 ton

capacity, or on freight or baggage elev tors that do not hav

automatic doors. They may not be employed for b ggage handling,

freight handling1 or handliUg heavy materials with hand twcka.

Ohio Rev. Code § 4107.43 (1974).

29 C.F.R. I 1604.2(b) (1973). The EEOC takes th

position that state protective laws cannot be used 88 a d f •

to an otherwise established unl w.ful mployment practice, or

81 a basis for a bona fide occupational qualification. Court•

hav followed this ruling. !•&•, Ros fre1d v. Southern P cific

!t•• 444 F.2d 1219 (9th Cir. 197ll.

E-50

These four staff corps are the Medical Corps, the

Dental Corps. JAG. and the Medical Service Corpe. The difference

between these and other staff corps in that women may be appointed

directly into these corps. 10 u.s.c. I§ SS74, SS78 1 SS78a 1

Other staff corps nominally exclude women. I§ SS7S,

5576, 5577, but the general statute authorizing women officer

appointments authorizes indirect appointments of women, I 5590.

All women who are appointed under 115590 are placed in a

promotion line for female officers only.

Exec. Order No, 11,437 3 C.R.F. 754 (Supp, 1967-1970).
I.e., the four “int•grated” staff corps listed in

note 10, supra.

Congress provided for this problem in the Nurse

Corps by allowing delay of diecharge under a “twtce … failed”

standard. It is unclear why a similar provision could not

have taken care of the problem with women line officers.

Women lieutenants (j.g.) are forced out after 7

years • § 6402 •

lS. St. Tammany and Washington Parished are in the

“toe” of the Louisiana ”boot,” north of Lake Pontchartrain.

Slidell and Bogalusa are the largest towns in the two

parishes.

Actually the narrow holding was that Strauder was

entitled to remove his prosecution to the federal courta

under a statute that authorized removal by a person who

could not enforce any right secured to him.by a law providing

E-51

for “equal civil rights.” As a preliminary atep of the analy1ia,

the Court held that excluding Negroes from jury service was a

denial of equal protection to Negro defendants.

For instance, the Court noted that Mexican.•Americans

had be n placed in segregated schoola, that at least one

restaurant in town displayed a sign that said “No Mexican•

Served,” and that Maxican•Americansparticipation in busin se

and conmunity affairs was alight. 347 u.s. at 479-80.

Federal juror exemption• are governed by 28 u.s.c.

I 1863 (b) (6). Local jury plans may exempt “groups of per•ona

or occupational claaaea” only on the ground ”that their

exemption is in the public interest.” At a minimum, the plan

must provide exemptions for member• of the Armed Forces,

member• of fbe and police departments, and “public officers”

of federal and state government. Section 1863(b)(S) requires

jury plane also to specify groups or class• whose members

ull be excused from s•rvice, on individual request, on grounds

of undue hard1hip or extreme inconvenience.

The state bas furnished the Court a transcript of

the debates over jury exemptions at its recent constitutional

convet’ltion. Delegate A. Landry explained the current system:

Now in order to secur jurors, it ts nece sary

for the jury commie ioner to get up a list of

individuals and it is usually selected, not

select d, but it is taken from telephone books,

from lists of high chools giving the list of aames

of person who have reached the age of eighteen.

You have to take it from the city directories,

You have to take a list fr01111, in my pariah, from

E-52

the water district, which is all the water meters

in the parish, and also all of the register d voter

of th p rish, which means you have approximately

fift en to twenty thousand names in the large hopper.

You cannot sep rate th women from the men and then,

when you dr w a criminal jury, you must draw them at

random. In my p rish, I us the capsul type of

drawing where the jury commission rs do not even

know what name they are drmdng. Only 1 st week,

in ord r to suppl ment the jury venir list, we

had to draw av r fourteen hundr d names to put in

1ix hundr d and fifty namea in th jury venire

list, because women kept cropping up.

The i1aue is whether the Fay v. !21!, “intentional

relinquishment of a known right” standard should apply to a

claim that could have been raised but would have been futile

at the time. This Court haa never decided what waiver

standard applies to a defendant’s collateral attack on a

!!’··

conviction (not a guilty plea) on the ground of racial exclusion

from his grand jury. Tollett v. H. Jenderson, 411 U.S. 258, 260

1 (197~); Parker v. North Carolina, 397 u.s. 790,, 798-99

(1970). Circuit court• that apply the “intentional relinquish•

ment” standard to racial cases have held that failure to

object to the vanire or the grand jury is not an automatic

waiver. McNeil v. North Carolina, 368 F.2d 313 (4th Cir.

1966′; Labat,’tv. Bennett, 365 F.2d 698 (Sth Cir. 1966). That

reasoning would apply !. fortiori to a right• unknown to anyone

at the time of conviction, to a jury selected without exclusion.

of women. The he~rt of the dilem:na is ratroactivity.

E-53

391 u.s. 194 (1968).
Unless, that is, the Court accept• the appeal in

Batas v. Edwards (motion for docketing to be diacuaaed at

October 7 Conference) in which several Louisiana citizen•

claim that the constitutional convention violated Baker v •

..Q.!!!:. because the governor appointed 27 at-large delegates

out of a total of 132. The other 105 delegates were elected

by the voters in established atate legislative districts.

Carter was a declaratory judgment auit brought by

jury•eligible Negroes who complained that they had been

systematically excluded from jury lists. The Court allowed

their suit, without diatinguishing between civil and criminal

juries. 396 u.s. at 329-30.

Appellee1u~dercut even this contention by suggesting

that male juror• tend to favor attractive young female litigants.

Appall•••’ brief at 17. There is good rea1on to suppose that

the opposite would also obtain: some women jurors might be

unduly harsh or attractive young female litigants. The

atereotype of the jealous woman is not entirely fallacious.

E-54

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