Valparaiso University Law Review Volume 5 Number 2 Symposium on Women and the Law pp.281-317 Symposium on Women and the Law The Double Standard of Justice: Women's Rights Under the Constitution Mary Eastwood Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Mary Eastwood, The Double Standard of Justice: Women's Rights Under the Constitution, 5 Val. U. L. Rev. 281 (1971). Available at: https://scholar.valpo.edu/vulr/vol5/iss2/3 This Symposium is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Eastwood: The Double Standard of Justice: Women's Rights Under the Constitu THE DOUBLE STANDARD OF JUSTICE: WOMEN'S RIGHTS UNDER THE CONSTITUTION MARY EASTWOOD* INTRODUCTION Women frequently are subjected to different rules than are men, in the law as well as socially. There are still some federal and state laws that either treat men and women differently or apply only to one sex.' Government agencies sometimes administer laws designed to protect women from sex discrimination differently than those designed to protect blacks from racial discrimination Courts not only have approved laws distinguishing between men and women but generally have used a * Office of Legal Counsel, Department of Justice. The views expressed in this article are those of the author. They are not presented as the views of the Department of Justice or any other government agency or official body. 1. Sex distinctions in laws and official practices have been documented elsewhere. See L. KANOWITZ, WOMEN AND THE LAW (1969); PRESIDENT'S COMMISSION ON THE STATUS OF WOMEN, AMERICAN WOMEN (1963); U.S. DE"T OF LABOR, WOMEN'S BUREAU, 1969 HANDBOOK ON WOMEN WORKERS (1969); CITIZENS' ADVISORY COUNCIL ON THE STATUS OF WOMEN, REPORT OF THE TASK FORCE ON FAMILY LAW AND POLICY (1968); P. MURRAY, ENGLISH AND AMERICAN STATUTES ON QUALIFICATIONS, EXEMP- TIONS, AND EXCUSES OF JURORS WITH SPECIAL REFERENCE TO WOMEN (1966). 2. One such example is the failure of the Federal Communications Commission to require station licensees to report their positive action programs for equal employment opportunity for women while requiring such reports of programs with respect to Negroes, American Indians, Spanish-Surnamed Americans and Orientals. Nondiscrim- ination Broadcast Practices,23 F.C.C.2d 430 (1970). See also 35 Fed. Reg. 8825 (1970) where the FCC announced that its major enforcement efforts would be with regard to employment of those groups (and not women). The National Organization for Women (NOW) has petitioned the Commission to amend its report forms so as to include posi- tive action programs for women. F.C.C. No. RM-1722, filed December 4, 1970. Similarly, regulations of the Department of Labor issued under Executive Order No. 11246 of September 24, 1965, as amended, concerning nondiscrimination in employment under government contracts require affirmative action programs to eliminate discrimination against minority groups. 35 Fed. Reg. 2568 (1970). In response to questions as to the ap- plicability to affirmative programs for the employment of women, the Secretary of Labor stated he had "no intention of applying literally exactly the same approach to women in Order 4 [35 Fed. Reg. 2568 (1970)] which was designed for racial minori- ties." Washington Post, July 27, 1970, § B, at 1, col. 1. The Labor Department's Wash- ington Plan of affirmative action programs for federally involved construction contracts also excludes women. 35 Fed. Reg. 19352 (1970). See also PRESIDENT'S TASK FORCE ON WOMEN'S RIGHTS AND RESPONSIBILITIES, A MATER OF SIMPLE JUSTICE, 18-26 (1970). Early interpretations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1964), by the Equal Employment Opportunity Commission made clear that that agency did not at the time regard sex discrimination important. For example, the EEOC specifically allowed sex discrimination in job advertising. 30 Fed. Reg. 14928 (1965) ; 31 Fed. Reg. 6414 (1966). But-see the current rule, 29 C.F.R. § 1604.4 (1970), discussed in Fuentes, Federal Remedial Sanctions: Focus on Title VII, 5 VAL. U.L. REv. 374 (1971). Produced by The Berkeley Electronic Press, 1971 Valparaiso University Law Review, Vol. 5, No. 2 [1971], Art. 3 282 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 5 different criterion for determining whether constitutional protections against sex discrimination have been violated than is used with respect to racial discrimination. Thus, a double standard of justice is applied to the classes of men and women and the classes of women and blacks. The failure of the courts to interpret the equal protection and due process guarantees of the fifth and fourteenth amendments3 as prohibit- ing discrimination against women in the law has caused women to seek adoption of the Equal Rights Amendment: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." 4 The single purpose of the proposed amend- ment is to require the equal treatment of men and women under the law and to restrain the courts from applying different rules to women under the Constitution. The problem of sex discrimination does not lie in any limited scope of the fifth and fourteenth amendments to protect women from discrimination in the law, but from the refusal of the courts to regard women as fully human "persons" under these amendments.5 As Representative Martha Griffiths explained on August 10, 1970, the first time in the 47 year history of the Equal Rights Amendment that it passed the House of Representatives :6 There never was a time when decisions of the Supreme Court could not have done everything we ask today. .The Court has held for 98 years that women, as a class, are not entitled to equal protection of the laws. They are not "persons" within the meaning of the Constitution." Advocates of equal rights for men and women regard proper inter- pretation of the existing constitutional protections against sex discrim- ination as meaning the same as the Equal Rights Amendment. This position was first stated by the President's Commission on the Status of Women in 1963: Equality of rights under the law for all persons, male or female, is so basic to democracy and its commitment to the 3. U.S. CONST. amend. V prohibits the federal government from depriving any person of "life, liberty, or property, without due process of law." U.S. CONsT. amend. XIV similarly prohibits the state governments from denying due process to any person and prohibits the denial "to any person within its jurisdiction the equal protection of the laws." 4. S.J. Res. 8, 92d Cong., 1st Sess. (1971). 5. Murray & Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 GEO. WASH. L. REV. 232, 238 (1965). 6. H.J. Res. 264, 91st Cong., 2d Sess. (1970), reported at 116 CONG. REc. H7984-85 (daily ed. Aug. 10, 1970). 7. Id. at H7953. https://scholar.valpo.edu/vulr/vol5/iss2/3 Eastwood: The Double Standard of Justice: Women's Rights Under the Constitu 1971] DOUBLE STANDARD ultimate value of the individual that it must be reflected in the fundamental law of the land. The Commission believes that this principle of equality is embodied in the Fifth and Four- teenth Amendments to the Constitution of the United States.8 For this reason, the Commission concluded that an additional amend- ment was not at that time needed, "[b]ut judicial clarification is im- perative in order that remaining ambiguities with respect to the con- stitutional protection of women's rights be eliminated." 9 This article first sets forth the judicial standards that have been applied with respect to sex discrimination cases under the fifth and fourteenth amendments, as compared to other types of class discrimina- tion cases, and secondly, analyzes the effect the Equal Rights Amendment would have upon existing differences in treatment of men and women in the law. UNEQUAL PROTECTION ConstitutionalTests for Class Distinctions Two standards have been developed by the courts to determine whether laws differentiating between classes of persons violate con- stitutional guarantees of equal protection of the laws.'" One such standard is that the law is valid if the class distinction is based upon some "reason- able" ground. The other is that the class distinction is constitutional only if it is shown that the government has a "compelling interest" in making the class distinction. The reasonableness test has generally been applied with respect to laws treating women as inferiors or restricting their liberties. The stricter compelling state interest test has been applied with respect to racial classifications and situations involving fundamental constitutionally protected liberties." There is, however, an additional distinction between the two standards: the burden is upon the person challenging a law to show that it is unreasonable; the burden is upon the state to show that it has a compelling interest. The more lax reasonableness standard applied by the courts in equal protection cases is that the classification must be based on "some 8. PRESIrNT'S COMMISSION ON THE STATUS OF WOMEN, AMERICAN WOMEN 44 (1963). 9. Id. at 45. 10. The fifth amendment due process clause imposes restrictions on the federal government against discriminatory class legislation comparable to restrictions imposed on the states by the fourteenth amendment equal protection clause. Boiling v. Sharpe, 347 U.S. 497 (1954). 11. For an analysis of constitutional standards under the equal protection clause see Developments in the Law-Equal Protection,82 HARv.