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
2.
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
3.
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
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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-
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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
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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”
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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 .
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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
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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’
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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
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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
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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
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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
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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.
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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
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” “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
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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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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
11
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,
12
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
13
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.
I
There ia one other difference between the program for
attrition of male lieutenants and that applicable to female
I
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•
14
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
‘
.1
J
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
15
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
I
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
16
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
17
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
I
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
19
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
20
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
21
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.
22
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
23
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
24
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).
2.
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
J.
- 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
4.
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.
5,
- 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