Trefethen v. Cataldo Brief for Plaintiffs

    IN THE UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF MASSACHUSETTS

No.

Pg&SENSfi N. .TREFETHEN ET AL., .Plaintiffs

v".

ROBERT GATJ^pX) ET AL., Defendants

BM1F FOE THE . PLAINTIFFS'

Renee D. Chotiner
flary C. Fowler 
Ann L. Greenblatt

Attorneys for the Plaintiffs

Submitted: December 8, 1971



IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

No.

FLORENCE N. TREFETHEN ET AL., Plaintiffs

v.

ROBERT CATALDC ET AL., Defendants

BRIEF FOR THE PLAINTIFFS

Renee D. Chotiner 
Mary C. Fowler 
Ann L. Greenblatt

Attorneys for the Plaintiffs

Submitted: December 8, 1971



CITATIONS

CASES

Abbott v. Mines, 411 F.2d 353 (6th Cir.1969) ................  7

Allied Stores of Ohio, Inc. v. Bowers. 358 U.S. 522 (1959) .. 34 

Ballard v. U.S.. 329 U.S. 187 (1946) ........................  27, 28
*

Bates v. City of Little Roc?<. 361 U.S. 516 (i960) ........... 30, 32

Billingsley v, Clayton. 359 F.2d 13 (5th Clr.1969) ..........  6, 11

Bradwell v. Illinois. 83 U.S. 130 (1872) ....................  20

Brewer v. Hoxle School District. 238 F.2d 91 (8th Cir.1956) . 6

Brown v. Board of Education. 347 U.S. 483 (1954) ........ . 16, 20, 30

Carter v. Jury Commission of Greene County. 396 U.S. 320
(1970) ..................................................  5-6, 12

Carrington v. Rash. 380 U.S. 89 (1965) ....................... 31, 36

Cassell v. Texas. 339 U.S. 282 (1950) .......................  7, 11

Cohen v. Chesterfield School Board, 39 U.S.L.W. 2686 (E.D.Va.
1971) ...................................................  25

Commonwealth v. Daniel. 430 Fa. 642 (1968) .... .............  24

Commonwealth v. DiStaslo. 297 Mass. 347 (1922), cert, denied.
302 U.S. 683 (1923) ....................................  13

Commonwealth v. French. 259 N.E.2d 195, Adv.Sh. 431 (1970) .. 13

Commonwealth v, Stauffer. 214 Pa.Super 113 (1969) ...........  24

Concordia Fire Insurance Company v. Illinois. 292 U.S. 535
(1934) ..................................................  39, 40, 41

Dandrldge y, Williams. 397 U.S. 471 (1970 ..................... 34, 36, 41

'Dlni v. Nalditch. 20 111.2d 406 (i960) ................... 25

Dunham v. Pulsifjer. 3l2 F.Supp. 411 (D.Vt.1970) ............  32

Eubanks v. Louisiana. 356 U.S. 584 (1958) ...................  11

Flemming v. Nestor. 363 U.S. 603 (i960) ............ 34

Gallagher v. City of Bayonne. 102 N.J.Super. 77 (1968),
affirmed. 55 N.J. 159 (1969) ........................... 23

Glasser v. U.S.. 315 U.S. 60 (1942) .........................  26

0 0



Goesart v. Cleary. 335 U.S. 464 (1948) ....................  23

Graham v. Richardson. 39 U.S.L.W. 4732 (June 14, 197l) .... 32

Green v. County School Board. 391 U.S. 430 (1968) ..... . 30

Griffin v. County School Board of Prince Edward County. 377
U.S. 218 (1964) .........................................  36

Griffin v. Illinois. 351 U.S. 12 (1956) ....................  29, 30

Hall v. St. Helena Parish School B0ard. 197 F.Supp. 649 
(E.D.La.1961). aff«d. 287~F.2d 376 (5th Cir.1961), 
aff1 d mem. . 368 U.S. 515 (1962) ............... . 32

Harper v. Virginia Board of ^lections. 38 U.S. 663 (1966) .. 21, 30

Hernandez v. Texas. 347 U.S. 475 (1954) ......... *********** ^

Hitaffer v. Argonne Company. 183 F.2d 811 (D.C.Cir.1950) ... 25

Hobson v. Hanson, 269 F.Supp. 401 (D.D,C.’967), affjjd sub
nom, Smuck v. Hobson. 408 F.2d 175 (D.C.Cir.1969) ..... 42

Hoyt v. Florida. 368 U.S. 57 (1961) ............ ............  44

In Parus v. District Court. 42 Nev. 229 (1918) ............. 20

Jewell v. Stebbins, 288 F.Supp. 600 (^.D.Ark.1968) ........  6, 9

Jones v, Georgia. 389 U.S. 24 (1967) ................ ....... 9, 10

Juarez v. State. 102 Tex.Cr.R. 297 (1925) ..................  3
Karczewskl v. Baltimore and Ohio Rail Road, 274 F.Supp. 169

(N.D.111.1969) .......................................... 24
Katzenbach v. Morgan, 384 U.S. 641 (1966) ..................  31, 32

Kjrsteln v. Rector and Visitors of the University of
Virginia. 309 F.Supp. 184 (E.D.Va.1970) ............... 24

Korematsu v. U.S., 323 U.S. 214 (1944) ....... •••*••••..... 2  ̂* ^  ^

Labat v. Bennett. 365 F.2d 698 (5th Cir.1966) .............. 9, 11

Levy v. Louisiana. 391 U.S. 68 (1968) ............ 30, 32

Ljberti v. York. 28 C0nn. Supp. 9 (1968) ...................  24
Llndsley v. Natural Carbonic Gas Company,. 220 U.S. 61 (1911) 28-29, 34

Louisville Gas and Electric Company v. C0leman, 277 U.S. 32
(1928) ................................................. 40’ 41

(in)

Gjona v, American Guarantor Company. 391 U.S. 73 (1968) . . . .  29



Martin v. Struthers. 319 U.S. 141 (1943) ............. 31

Mayflower Farms. Inc, v. Ten Syck. 297 U.S. 266 (1936) .......  32, 39, 40, 41

McGowan v. Maryland. 366 U.S. 420 (1961) .......... ..........  32, 34

McCrlmmon v. Daley. 418 F.2d 366 (7th Cir.1966) ............. 23

McLaughlin v. Florida. 379 U.S. 184 (1964) ................... 29, 31, 32

Mengelkoch v. Industrial Welfare Commission. 437 F.2d 563
(9th Clr. 1971) .......................................... 25-26

Millington v. South Astern ^levator Company. 22 N.Y.2d 468
(1968) ..................................................  25

Mpobs v. Wolffsohn. 143 Mass. 130 (1886) ..... ..............  13

Mollere v. Southeastern Louisiana Collage. 304 F.Supp 826
(5.D.La.1969) ........................................... 24-25

Muller v. Oregon. 208 U.S. 412 (1908) .............. .........  19, 25

Munroe v. Brigham. 19 Pick. 368 (1841) ......................  13, 14

NAACP y. Alabama. 357 U.S. 449 (1958) .......................  31

NAACP v. Button. 371 U.S. 415 (1963) .................... .... 30

Neal v. Delaware. 103 U.S. 370 (1881) ....................... 7, 9

Norris v. Alabama. 294 U.S. 587 (1935) ..... ........ . 7, 9

Owen v. Illinois Baking Corp.. 260 F.Supp. 820 (W.D.Mlch.
1966) ...................................................  25

Paterson Tavern and Grill Owners Association, Inc, v. cf \-Uwt-Uorne_
57 N.J. 180 (1970) .....................................  23

Phillips v, Martin Marietta Corp,. 400 U.S. 542 (1971) .....  22

Preston v. Mandevllle. 428 F.2d 1392 (5th Cir.1970) ... .. 6,9, 10

Railway Express Agency. Inc, v. New York. 336 U.S. 106 (1949) 34

Reece v. State of Georgia. 350 U.S. 85 (1955) ............... 7

Reed v. Reed. U.S.L.W., Nov. 23, 1971, No 70-4 ..............  22, 34, 35

Reynolds v. Sims. 377 U.S. 533 (1964) .... .............. . 41

Rinaldi v. Yeager. 384 U.S. 305 (1966) 36

Sal a v. New Ynrk. 334 U.S. 558 (1948) .......................  31

6 v)

Loving v, Virginia. 388 U.S. 1 (1967) ....................................................  24, 31, 32



Sal 1»or Inn, Inc, v. Kirby. 5 Cal.3d 485 P.2d 529 (l97l). 15, 19, 29-30

............. 6, 9, 11-12
Schnoldor v. StatP. 305 U.S. 147 (1939) .....................  32

Salary v. Wilson. 415 F.2d 467 (5th Clr.1969)

SMdpnborg v. McSprloy^ Old Ai^ Hq u s p , Inc.. 308 F.Supp.
1253 (S.O.N.Y.1969) ....................................  23

Spjdpnbprg v. McSorloy's Old A1p Hq u s p . Inc.. 3l7 F.Supp. 593
(1970)

Sp I Fuji! y. StatP. 38 Cal.2d 718 (1952)
Shapiro v. Thompson. 394 U.S. 618 (1969)

Shattman v. Toxas Employment Commission. 330 F.Supp. 328
(W.D.Tpx.1971)

Shorbort v, Vprnpr. 374 U.S. 398 (1963)

Shprltzpr v, Lan,*;. 224 N.Y.S.2d 105 (Sup. Ct. 1961), mod* d . 234
N.Y.S.2d 285 (1962), aff»d. 241 N.Y.S. 869 (1963) 

Sjms v, Gpprgja. 389 U.S. 404 (1967)

Sklnnor v. Oklahoma. 316 U.S. 535 (1942)

Smith v. Tpxas. 311 U.S. 128 (1940)

Sprogls v. Unltod Ajr Linos. Inc.. 308 F.Supp. 959 (N.D.Ill.
1970)

StatP v. -mery. 224 N.C. 581 (1944)

Straudpr v. Wpst Virginia. 100 U.S. 303 (1880)

rakahashl v. Fish and Gamp Commission. 334 U.S. 410 (1948) ..

Ihipl v. Southern Pacific Company. 328 U.S. 217 (1946) ......

jrhomhlll v. Alabama. 310 U.S. 88 (1940) .....................

'orcaso v, Watkins. 367 U.S. 488 (1961)
tTumor v. Foucho, 396 U.S. 346 (1970)

J.S. y. Butora. 420 F.2d 564 (1st Cir.1970)

J.S, y, Goldon. 235 F.Supp. 1020 (D.C.Mass.1964)

J.S. v, Hoffa. 199 F.Supp. 25 (S.D.Fla. 1961)

J.S. px rol. Robinson v. Y0rk. 281 F.Supp. 8 (D.Conn.1968) ..

Whltp v. Crook. 251 F.Supp. 401 (M.D.Ala,1966)

(v)

23

29, 32

30, 32

22

30, 32

25-26

9

30, 32 

9, 11

22

20

5, 7, 38, 40 

29, 32

5, 10, 11, 26-27 

31

5
6

9, 10, 28 

14

5, 10 

23-24
5, 6, 13, 22



Whltus v. Georgia. 385 U.S. 545 (1967) .......................  9, 10

Wilson v. Hacker. 101 N.Y.Supp.2d 461 (S.Ct.l950) ...........  23

Ylck Wo v. Hopkins. 118 U.S. 356 (1886) .....................  41, 42

STATUTES

United States Constitution, Sixth Amendment

United States Constitution, Seventh Amendment

United States Constitution, Fourteenth Amendment

42 U.S.C. §1983 ................. .............................  2

28 U.S.C. §1343 ...............................................  2

28 U.S.C. %% 2281-2 ...........................................  2

28 U.S.C. if 2201-2 ............................................ 2

28 U.S.C. § 1651 ...............................................  2

42 U.S.C. € 2000e .............................................. 22
Massachusetts General Laws ch. 234, §1 ...................... 3, 12, 14, 33, 34,

35, 39, la-2a

Massachusetts General Laws ch. 234, § 1 A .....................  14, 33

Massachusetts General Laws ch. 234, §2 .................. . 14

Massachusetts General Laws ch. 234, §4 .................... 3, 13, 33, 2a-3a

Massachusetts General Laws ch. 234, §38 33

MISCELLANEOUS

Bettelheim, The Children of the Dream (1969).................  44

Crozier, Constitutionality of Discrimination Based on_S»x,
15 Bos.U.L.kev. 723 ( 1935) .............................  15

Finkelstein, The Application of Statistical Decision Theory 
to the Jury Qiscrimination Cases. 80 Harv.L.Rev. 338 
(1966)....................................................  4

Flexner, Century of Struggle: The Woman's Rights Movement in
the United States (1958), p. 91, p.98 ..................  17, 18

Fogarty, Rapoport and Rapoport, Sex. Career and Family (1971) 42, 44

Hacker, Women as a Minority Group. 30 Social Forces 60, 65
(1951) ................................... ................ 16» 3a"^a

(vi)



Handbook on Women Workers. Woman's bureau, bulletin 294,
United States Department of Labor (1969)................  42

Hearings, Senate Judiciary Committee, 84th Congress 2d Session
(1970) , testimony of Thomas I. person...............  21

Hoffman, Review of Child Development Research (1964) ........ 44

Kenyon and Murray, The Case for Equality In State Jury Service
(unpublished--1966) ...... ........................... 38

The Improvement of the Administration of Justice. ABA (1961). 27

Martineau, Society In America, I: 199 (1837)........... 38

Maternal Caro and Mental Health. World Health Organization
(1962)....................................................  44

Mead, Deprivation of Maternal Care. World Health Organization
(1962) ...................................................  44

Montagu, Man's Most Dangerous Myth: The Fallacy of Race. 181
(4th Ed. 1964) ........................................... 19

Murray, The Negro Woman*s Stake In the Equal Rights Amend­
ment. 6 Harv.CR/CL.L.Rev.tf2 253 (1971) ..................  16

Murray and Eastwood, Jane Crow and the Law? Sex Discrimina­
tion and Title VII. 34 Geo.Wash.L.Rev. 232 35

Myrdal, An American Dilemma. 1077 (2d Ed., 1962) .....••«•••• 16

Note, Pevelopments--Equal Protection. 82 Harv.L.Rev. 1065 ... 36

Note, Sex Discrimination and E0Ual Protection: Do We Need a 
Constitutional Amendment?. 84 Harv.L.Rev. 1449, 1503
(1971) ...................................................  19

Nye and Hoffman, The Employed Mother In America (1963) .....  44

Rabin, Growing Up in the Kibbutz (1965) ....................... 44
Report of Committee on Trial by Jury. ABA Section of Judicial

Administration (1938) ................... ...............  27
Report with Recommendations of Special Committee on Methods

of Selecting Jurors. 20 Nass.LawQ. 120(1936)........ . 13

16 Ruling Case Law 229 .............. ........... ............. 6

Slegal and Haas, "The Working Mother: A Review of Research."
Child Development (1963) ....................... . 44

Smith, Daughters of the Promised Land (1970) .............. 18

Spiro, Children of the Kibbutz (1958) .........................  44

Standards Relating to Trial by Jury. ABA Project on Minimum 
Standards for Criminal Justice, Approved Draft 
(September, 1968) ........................................  27-28

(vil)



Stolz, "Effects of Maternal r-mploymont on Children," Child
D<=>v»lopinont: (1960)......................... .............  44

Tussman and t<*n Broek, Tho Squal Protection of tho Laws.
37 Calif.L.Rov. 341 (1949) .............................. 36

(vlii)



QUESTIONS PRESENTED

Do state statutes which operate to create a mandatory exemption of women 

with children under sixteen years of age from jury service deny those women the 

equal protection of the laws, as guaranteed by the Fourteenth Amendment to the 

Constitution?

Do the administrative practices of the Lexington Board of Selectmen in car­

rying out their statutory duty to select jurors deny the women of Lexington, 

Massachusetts the equal protection of the laws, as guaranteed by the Fourteenth 

Amendment to the Constitution?

STATEMENT OF THE CASE

Plaintiffs

Plaintiffs Florence N. Trefethen et.al., twenty-five women of Lexington, 

Massachusetts who have children under sixteen years of age and ten women of 

Lexington who do not have such children, bring this action for themselves joint­

ly and severally and on behalf of all others similarly situated pursuant to 

Rule 23 of the Federal Rules of Civil Procedure. The prerequisites of sub­

sections (a), (b)(1), and (b)(2) of that Rule are satisfied. The members of the 

class (all female citizens of Lexington, Massachusetts of the age and mental 

condition qualified to serve as jurors) are so numerous that joinder of all of 

them is impracticable. There are questions of law and fact common to the class, 

affecting the several rights of female citizens to serve as jurors and to have 

members of their own sex included on jury rolls and lists in Lexington. The 

claims of the Plaintiffs are typical of the claims of the class. A common rel­

ief is sought. The interests of said class are adequately represented and pro­

tected by Plaintiffs. The prosecution of separate actions by individual members 

of the class would create a risk of (a) inconsistent or varying adjudications 

with respect to individual members of the class which would establish incompati­

ble standards of conduct for the class or which would establish incompatible

standards of conduct for the parties opposing the class, or (b) adjudications

( 1)



v/ith respect to individual members of the class which would as a practical mat­

ter be dispositive of the interests of the other members not parties to the ad­

judications or substantially impair or impede their interests. Furthermore, the 

parties opposing the class have acted and refused to act on grounds generally 

applicable to the class, thereby making appropriate final injunctive and declar­

atory relief v/ith respect to the class as a v/hole.

Defendants

Defendants in this action are the Selectmen of Lexington, Massachusetts, 

sued individually and in their official capacity as Selectmen, all of their 

agents, employees, and successors in interest: Robert Cataldo, Chairman; Fred

C. Bailey; Allan F. Kenney; Alfred F. Busa; and Natalie H. Riffin.

Jurisdiction

This court has jurisdiction of this action under b2 U.S.C. § 1983 and 

28 U.S.C. § 13^3. This action seeks relief from violation of Plaintiffs right 

to serve on a jury, protected by the United States Constitution. Because the 

cause of action poses a constitutional challenge to a statute of the Common­

wealth of Massachusetts, a three-judge court is required under 28 U.S.C. §§ 2281-2. 

Relief

Plaintiffs seek injunctive and declaratory relief pursuant to b?_ U.S.C.

§ 1983 and 28 U.S.C. §§2201-2. A preliminary and permanent injunction is sought 

enjoining and restraining the Defendants from continuing to exclude, limit, and 

restrict qualified women residents of Lexington from service on Middlesex County 

juries, on account of their sex and from utilizing any names presently contained 

in the jury box or the jury list for the selection of any jurors in any court 

whose jurisdiction includes Lexington, Massachusetts, until such time as the 

names of women qualified for jury duty shall have been placed in such jury boxes 

and on such lists v/ithout exclusion, limitation, or restriction on account of 

sex. 28 U.S.C. § 165'' provides that the federal courts may issue all writs ne­

cessary or appropriate in aid of their respective jurisdictions and agreeable to

(2)



the uses and purposes of law. 

Facts

The Statutes of the Commonwealth of Massachusetts stipulate that:

"A person of either sex qualified to vote for representatives 
to the general court, whether a registered voter or not, shall 
be liable to serve as a juror, except that the following per­
sons shall be exempt: ... mothers of children under sixteen 
years of age or women having custody of such children ..."
Mass.Gen.Laws ch. 23̂ +, sec. 1.

"If at any time it appears that the public interest v/ill be 
served by excusing any person from jury service, or if the 
performance thereof will impose undue hardship or unusual in­
convenience upon any person, the judge presiding at the court 
to which the juror has been called for service may excuse such 
person from jury duty...." Mass.Gen.Laws ch. 23^, sec. 1A.

"The ... board of selectmen in tov/ns shall annually before 
July first prepare a list of such inhabitants of the ... town, 
qualified as provided in section one, of good moral character, 
of sound judgment and free from all legal exceptions, not 
exempt from jury service under section one or two, as they 
think qualified to serve as jurors. The board shall place on 
such list only the names of persons determined to be qualified 
as aforesaid upon the knowledge of one of its members, or after 
personal appearance and examination under oath, or after exam­
ination in the form of a questionnaire, approved by the state 
secretary, to be answered under oath." Mass.Gen.Laws ch. 23^, 
sec. k.

The jury lists for Lexington, Massachusetts, have been compiled in the same 

manner for the past six years. In the tov/n of Lexington, a "police list" —  a 

census of persons over the age of twenty —  is prepared each year; this list 

includes names, addresses, and occupations of Lexington residents. From this 

list is drawn up by a town employee, responsible to the selectmen, a preliminary 

jury list. Those who are placed on this preliminary list are mailed a question­

naire which inquires about exemptions, etc. The final jury list for the town is 

compiled after the return of these questionnaires. A random selection of those 

listed are actually called for service by the court.

For complete text of sections one and four, see Appendix.
2
Section two stipulates that " QQ person attending and serving as a juror in any 
court in pursuance of a draft shall not be liable to be drawn or to so serve 
again within three years- after the termination of such service, except in Nan­
tucket and Dukes counties, in which he shall be so Diablo once in every two year:

(3)



Lexington, according to 1970 U.S. Census figures, has a population of

31,886— 15,580 males and 16,306 females. There are 7,652 males over 22 and

under 70 years of age (the boundaries outside of which the statute grants on

exemption for age), and 8,571 females within this bracket. Using a cut-off

age of 45, one may reasonably assume that there are 4,056 female Lexington

residents who are not yet 70 and who do not have children under the age of

sixteen. Women, then, are 53% of the Lexington population between 22 and 70;

women who we may reasonably assume do not have children under sixteen compose

35% of the 22-70 age bracket in the town.

The jury lists for the past six years in Lexington have carried a total

of 1,584 names-- 1,574 males and ten females. (Two women, both of whom were

listed three consecutive years, together represent 60% of the total female

representation on the jury lists of Lexington since 1966.) The odds that such

jury lists resulted from random sampling of the population are less than one in 
2^010 in the case that men 22-70 and women 45-70 were cons.idered for service. 

The odds are clearly astronomical and meet all known tests for statistical 

significance.^

There is no statutory basis for the exclusion from jury lists of women 

v/ithout children under sixteen. Yet these women, in addition to the "exempted" 

mothers, have been and are still being almost completely excluded from the jury 

lists for Lexington, Massachusetts.

I. THE RIGHT TO SERVE ON A JURY IS A RIGHT OF CITIZENSHIP PROTECTED BY THE 

CONSTITUTION.

The right of a criminal defendant to be tried by a jury chosen from a 

venire from which members of his class or group have not been arbitrarily or 

systematically excluded has been established in a long chain of cases dating

See Finkelstem, The Application of Statistical Decision Theory to the Jury 
Discrimination Cases 80 Ilarv.L.Rev. 338 (i960).

(4)

3



back to Strnuder v. West Virginia, 100 U.S. 303 (i860). This right has been 

applied not only to Negroes but to other classes as well: Juarez v. State,

10? Tex. Cr. R 297 (1925) (Roman Catholics); Thiel v. Southern Pacific Co.,

328 U.S. 217 (day-wage workers); Hernandez v. Texas, 3^7 U.S. ^75 (195*0 

(persons of Mexican descent); Torcaso v. Watkins, 367 U.S. '+88 (1961) (atheists),

Gradually the courts extended the right to challenge a jury venire to 

defendants, who were not members of the allegedly excluded class. In United 

States v. Hoffa, 196 F.Supp. 25 (S.D. Fla. 1961), a Federal District court dis­

missed an indictment against James Hoffa because the selection of names for the 

Federal grand jury roll was limited to registered voters, to women who had volun­

teered for state jury service, and, in three counties, to jurors selected in 

state courts, even though there was no clear and direct prejudice to the defen­

dant.

From these decisions has evolved the concept that the exclusion of certain 

groups from jury service is an abridgement of the constitutional rights of 

potential jurors as well as of defendants. In White v. Crook, 251 F.Supp. 401 

(I'.D. Ala. 1966), Negro and female plaintiffs brought a class action suit against 

jury commissioners on the grounds that they were being arbitrarily and systema­

tically excluded from jury service (the Negroes administratively and the women 

statutorily). In that case, the court said:

" l-Jury service on the part of the citizens of the United States is 
considered under our lav; in this country as one of the basic rights 
and obligations of citizenship....The argument that the Fourteenth 
Amendment was not historically intended to require the states to 
make women eligible for jury service reflects a misconception of the 
function of the Constitution and this Court's obligation in inter­
preting it. The Constitution of the United States must be read us 
embodying general principles meant to govern society and the insti­
tutions of government as they evolve through time." 251F.Supp. at *f08.

Accordingly, the class action suit brought by potential jurors has become 

an accepted form of litigation. In Carter v. Jury Commission, 396 U.S. 3?0 

(1970), a suit brought by Negroes who had been excluded from jury service, the 

Supreme Court said:

(5)



"The District Court found no barrier to such a suit, and neither do 
we. Defendants in criminal proceedings do not have the only cognisa­
ble legal interest in nondiscriminatory jury selection. People 
excluded from juries because of their race are as much aggrieved as 
those indicted and tried by juries chosen under a system of racial 
exclusion....Whether jury service be deemed a right, a privilege, or 
a duty, the State may no more extend it to some of its citizens 
and deny it to others on racial grounds than it may invidiously 
discriminate in the offering and withholding of the elective fran­
chise." 396 U.S. at 329-330. 4

Plaintiffs further assert that the right to serve on a jury is a right im­

plicitly granted by the United States Constitution through the Seventh Amend­

ment's guarantee that "the right of trial by jury shall be preserved" auid 

through the Sixth Amendment's guarantee of an impartial jury. It follows as a 

necessary corollary that citizens have a right to serve on such juries. Without 

such an implied right, the explicit Constitutional guarantee of trial by jury 

would inevitably disintegrate.

This right to serve gains added force through the government's "inherent 

and undisputed right" to the service of its citizens as jurors; therefore, "any 

statute which strips the government of any portion of its prerogatives in this 

regard by giving exemption ... should receive strict construction." 16 R.C.L. 

229. This constitutional right of the state to its citizens' services implies 

a duty of citizenship and, consequently, a right in citizens to serve. In 

another sense, the constitutional right of defendants in criminal actions and 

of parties in civil suits (with the requisite amount in controversy) to a jury 

trial compels jury duty by citizens. In both cases, "The existence of a Con­

stitutional duty also presupposes a correlative right in the person upon whom 

the duty is imposed to be free from direct interference with its performance." 

3rewer v. Hoxie School District, 238 F.2d 91 (8th Cir. 1956).

The court's straightforward assignment of the label "right" to jury service 

in White v. Crook, 251 F.Supp. hOl (M.D.Aln. 1966) and in other recent class

^Other class action suits brought by potential jurors include Salary v. Wilson, 
*H5 F .2d 467 (5th Cir. 1969); Billingsley v. Clayton, 359 F.2d 13 (5th Cir.' 1966 
Turner v. Fouche, 396 U.S. 3̂ f6 (l970"5; Jewell v. St ebb ins, 288 F.Supp. 600 
(EAr\0%&) ; Preston v. Mandcvillc, ^28 F.2d 1592 (5th Cir. 1970).

(6)



action suite was certainly not unprecedented. It reaches back to Nineteenth

Century cases dealing with black citizens' absence from the jury rolls:

"The very fact that colored people are singled out and expressly 
denied by a statute all right to participate in the administra­
tion of the law, as jurors, because of their color, though they 
are citizens, and may be in other respects fully qualified, is 
practically a brand upon them, affixed by the law, an assertion 
of their inferiority. ... The Fourteenth Amendment makes no 
attempt to enumerate the rights it c j cl designed to protect.
It speaks in general terms, and those are as comprehensive ns 
possible. Its language is prohibitory; but every prohibition 
implies the existence of rights and immunities ...." Strauder 
v. West Virginia, 100 U.S. 303, 308-10 (l830).

The next year the Court reiterated that "...a denial to citizens of the African 

race, because of their color, of the right or privilege accorded to v.’hite 

citizens, of participating as jurors, in the administration of justice, is a 

discrimination against the former inconsistent with the ffourteenth] amend­

ment." Neal v. Delaware, 103 U.S. 370, 386 (l88l). The reassertion of jury 

service as a right has been a consistent theme in decisions since these seminal 

Nineteenth Century cases.^

Women's claim to the right to jury service is strengthened by the historic 

tradition of the jury as a fundamental right— one which grew with the extension 

of democratic freedoms. The original source of jury trial as a constitutional 

right is most often cited as Article 39 of the Magna Carta: "No freeman shall 

be captured or imprisoned or disseised or outlawed or exiled or in any way de­

stroyed, nor will we go against him, except by the lawful judgment of his peers 

or by the law of t..e land." This particular liberty, acquired by the English 

nodes from King John in 1215, was brought to the New V.'orld by some of its

5
'See, e.m., Norris v. Alabama, 29^ U.S. 587 (1935); Cassell v. Texas, 339 
U.S. 282 (1950); Recce v. State of Georgia, 350 U.S. 85 (1955); Abbot 
v. Mines, ^11 1.2d 353 T6th Cir. 1969'), in which the court ruled that 
the trial judge had abused his discretion in excluding all women from 
the jury panel because the issue in the case involved discussion of can­
cer of the male genitalia: "It is common knowledge that society no 
longer coddles women from the very real and sometimes brutal facts of 
life. Women, moreover, do not seek such oblivion. They not onlv have 
the right to vote but also the right to serve on juries," at 3C5

(7)



first settlors.

The Commonwealth of Massachusetts should be particularly aware of the im­

portance of this basic right, as the history of its development here is perhaps 

the longest in the United States. "The Plymouth Colony Laws of 1623 provided 

that criminal facts and all matters of trespasses between man and man should * 

be tried by the verdict of twelve honest men to be impannelled by authority in 

form of a jury upon their oaths.' [jP.L. 28]" Report with Recommendations of 

Speer- 1 Committee on Methods of Selecting Jurors, 9, in 20 Mass. Lav; Q. at 120 

(1936). Property qualifications for jury service in Massachusetts were deleted 

in 1. A requirement that a citizen pay "any state or county tax for the 

two years next preceding," Report, supra, at 11, was striken in 1891. Sub­

sequently, eligibility to vote for representatives— whether or not a citizen 

registers to vote— has been the only requirement for prospective jurors.

Massachusetts made women eligible for jury service in 19^9. At the same 

time the legislature created a series of exempted categories of women, the only 

three of which remaining are "mothers of children under sixteen years of age," 

'women having custody of such children," and "women members of religious orders.' 

The previous exemptions for "women nurses" and "women hospital assistants" were 

changed to simply "nurses" and "hospital assistants" by the legislature in 1969.

The federal government has already recognised and acted upon the necessity 

of equalising the rights between the sexes in jury service. 28 U.S.C. §1.862 

r.ovides that "No citizen shall be excluded from service as a grand or petit 

juror in t.hc district courts of the United States on account of race, color, 

religion, sex, national origin, or economic status." (1968 Amendment)

Plaintiffs assert that this recognition of women's equal right to jury 

service in the federal courts is effected by the Constitution, although re- 

ognized in specific statute. The Commonwealth is bound to grant its female 

citizens the civil rights already explicitly recognized by the federal govern- 

lent in statutory form.

(8)



II. TICE ADMINISTRATIVE PRACTICES OF THE LEXINGTON BOARD OF SELECTMEN IN

DRAWING UP JURY LISTS UNCONSTITUTIONALLY DENY THE WOMEN OF LEXINGTON THE 

EQUAL PROTECTION OF THE LAWS.

A. Arbitrary Systematic Exclusion from the Jury List by Defendants of 

Women not Statutorily Exempted Is a Denial of Constitutional Rights. 

The arbitrary and systematic exclusion of members of a group or class from 

jury service has been held to be unconstitutional even when the process set 

out by statute for the selection of jurors is constitutional and valid:

"The fact that the written words of a state's laws hold out a 
promise that no such discrimination will be practiced is not 
enough. The Fourteenth Amendment requires that equal protection to 
all must be given— not merely promised.

Here, the Texas statutory scheme is not in itself unfair: it is 
capable of being carried out with no racial discrimination whatso­
ever. But by reason of the wide discretion permissible in the vari­
ous steps of the plan, it is equally capable of being applied in 
such a manner as practically to proscribe any group thought by the 
law's administrators to be undesirable." Smith v. Texas, 311 U.S.
128, at130-131 (19^0). Accord, Norris v. Alabama, 29^ U.S. 58? (1935): 
Neal v. Delaware, 103 U.S. 3?0 (1880).

Moreover, the group or class need not be totally excluded from jury service

to establish unconstitutional discrimination. A token inclusion of the group 

not sufficient to satisfy the law. Labat v. Bennett, 365 F.2d 698 (5th Cir. 

i960); Preston v. Fandeville, ^28 F.2d 1392 (5th Cir. 1970); Sims v. Georgia, 

389 U.S. kOk (1967); Jones v. Georgia, 389 U.S. ?b (1967); Whitus v. Georgia, 

385 U.S. 5^5,(1967); Jewell v. Stebbins, 288 F.Supp. 600 (Ea>.W. \°yW& )• 

Salary v. Wilson, ^15 F.2d (5th Cir. 1969); United States v. But era, k20

is

56^ (1st Cir. 1970).

B. Overwhelming Statistic:.'! Imbalance Creates a Prima Facie Case of

Discrimination.

A significant disparity between the number of members of a class or group 

residing in a community and the number of members of that class or group on the 

community's jury list has repeatedly been held to be a prima facie case of 

discrimination against that class. Sims v. Georgia, supra; Jones v. Georgia, 

supra; Whit, us v. Georgia, supra. This standard has not only been applied to 

Negroes , but also to persons of Mexican descent (Hernandez v. Texas, 3^7 U.S.
(9)



475 095*0 ); daily wage earners (Thiel v. Southern Pacific Co., JPS U.O. 21? 

(1946) ); persons under thirty-five yeo.rs of age (United States v. Butera, 420 

F.2d 564 (1st Cir., 1970) ); persons v/ithout high school diplomas (United States 

v. Butera, supra); and women (United States v. Butera, supra; United States v. 

Iloffa, 199 F.Supp. 25 (S.D. Fla. 1961).).

Comparison of the statistics which the courts have in the past determined ' 

to establish prima facie cases of discrimination with the statistics in the 

present case will demonstrate beyond a doubt that a prima facie case of discri­

mination against women exists here. In Jones v. Georgia, 389 U.S. 24 (1967),

30.7/o of men over 21 in the county were Negroes, 19.7?5 of taxpayers (the source 

of names for the jury list was tax digests) were Negroes, and 5.0% of the jury

list were Negroes. The United States Supreme Court found that these figures 

established a prima facie case. Figures in V/hit.us v. Georgia, 385 U.S. 5*̂ 5 

(1967), also established a prima facie case. In that case Negroes represented 

42.6/0 of men over 21, 27.1% of taxpayers, 9.1% of the grand jury venire and 7.8'.' 

of the petit jury venire. Statistics establishing a prima facie case in 

Preston v. Handeville, 428 F.2d 1392 (5th Cir. 1970), were a population 29.3(5 

Negro with a 15/5 representation on the master jury roll.

In United States v. Butera, supra, the actual jury pool was 36(5 female whil 

the population was about 52/5 female. While the Federal Court of Appeals for the 

First Circuit determined that other evidence supported a finding of no discrimi­

nation, they noted that "...a 39/5 underrepresentation of so large and important 

a group as women cannot lightly be dismissed; it at least raises an inference of 

discrimination." 420 F.2d at 571. In the present case v/omen represent 53(5 of 

the population between the ages of 22-70, and women whom one may reasonably 

assume do not have exempt status represent 35/5 of that population. V/omen, 

however, represent only approximately 1/5 of the names on the jury lists of 

Lexington. The odds that such underrepresentation could occur randomly (see

i

supra, at page 4) are extremely small.



C. When a Prim Facie Case tins Been Establ ishod Neither AdnirlsJ r live 

Convenience Nor Lack of Conscious Intent Will Justify the Discrimina­

tion.

Once a prima facie case has been established the burden shifts to Defen­

dants to present evidence to justify the statistical imbalance. "The prima 

facie case the petitioners established placed a burden on the state of coming 

forward with rebuttal evidence and a constitutionally acceptable explanation 

for the facts that gave rise to the inference of deliberate and intentional 

discrimination." Labat v. Bennett, 365 F.2d 698, at 719; accord, Smith v. Texas, 

3 H  U.S. 1*t8 (19^0). Administrative convenience has been held not a legiti­

mate defense; in Thiel v. Southern Pacific Co,, jury commissioners testified 

that they excluded daily wage earners from the jury lists because, in their 

opinion, most of these people would ask to be excused from service on the ground 

that jury service would create financial hardship. The Supreme Court found 

that this reasoning did not constitute a proper defense, since "(ATere there was 

no effort, no intention, to determine in advance v/hich individual members of the 

daily wage earning class would suffer can undue hardship by serving on a jury 

at the rate of $b a day." 328 U.S. 21?, at 22b. Similarly, defenses that jury 

commissioners select only people they know, and therefore know to be of good 

character (Cassell v. Texas, 339 U.S. 28? (1950) ), or that it is local tradi­

tion to exclude certain groups from jury service (Eubanks v. Louisiana., 356 U.S. 

5&b (1958) ) are not sufficient.

Nor can a showing that Defendants acted in good faith or without intent 

to discriminate constitute a proper defense if the result of their actions is 

in fact discriminatory. In Salary v. Wilson the Court of Appeals for the Fifth 

lircuit said:

"The District Court found that the Jury Board acted in good faith in 
compiling the jury roll and considered that, under Billingsley/' this 
was a complete defense. Good faith, or lack of an improper motive,

Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966), the same court held 
that Negro plaintiffs alleging that they had been diccriminatorily excluded from 
juries in the same county failed to present sufficient evidence. , how
yyer, sufficient statistical evidence presented.



is not a defense to the failure of jury board members to discharge 
the affirmativc constitutional duties cast upon them."415 F.2d 46?, 
at 472 (1969).

In Salary, the Jury Board members testified that they did not choose jurors 

on the basis of race, and that they had made certain efforts to obtain the 

names of qualified Negroes to place on the jury roll (including house-to-house 

canvassing and writing letters to prominent local Negroes asking for sugges­

tions). Despite these efforts, the jury roll for an area 55/6 Negro was only 

12.9/j Negro. The court held that the defendants' evidence was not sufficient:

"In appraising whether a jury selection procedure cones up to consti­
tutional standards lack of cooperation by the Negro community is 
relevant in some context , along with evidence of the scope and in­
tensity of efforts made to obtain information from the Negro com­
munity and elsewhere. But those charged with administering the jury 
selection machinery may not transfer to the Negro community, or to 
any other segment of the community, the responsibilities placed by 
law upon them, nor may they transmute insufficient methods into 
effectual ones on the basis that Negroes are not sufficiently 
responsive." 415 F.2d at 472.

In class action suits brought by potential jurors the courts have pro­

vided both injunctive and declaratory relief, Bokulich v. Jury Commission,

?98 F.Supp. 181 (N.D. Ala. 1968), aff'd. sub nom. Carter v. Jury Commission,

39’S U.S. 320 (1970). There is every reason to expect the Court to grant such 

relief in this case.

III. THE MASSACHUSETTS LAW GOVERNING JUROR QUALIFICATIONS CREATES AN

UNCONSTITUTIONAL EXCLUSION BASED ON SEX.

A. The Lav.~ Creates a Mandatory Exclusion of Women with Children Under 

Sixteen from the Jury List, Not a Volnn '.ary Exemption for Such Women.

Seen as a whole, chapter 234 effectively creates a mandatory rather then 

a voluntary exemption for women with children under sixteen. Although the im­

plication of the term "exemption" in section one of the chapter seemingly is 

that a person entitled to such an exerption may waive it and serve on a jury, 

the stipulations for the juror selection procedures in section fovir dictate 

that exempted persons' names are not to appear on the jury list:

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"The ... board of selectmen ... shall ... prepare a list of such 
inhabitants of the ... town, qualified as provided in section 
one, of pood moral character, of sound judgment and free from 
all legal exceptions, not exempt from jury service under section 
one or two, as they think qualified to serve as jurors. The 
board-shall place on such list only the names of such persons 
determined to be qualified as aforesaid." (emphasis added) Macs.
Gen.Laws ch. 23̂ -, sec. ̂  .

Appellate decisions in Massachusetts hold that a verdict delivered by a

jury which included such an "exempt" juror will stand if that juror was not ch«

by counsel prior to the impanelling of the jury. The accompanying holding,

still being cited in recent decisions , is that an exempt juror, even though

she or he may waive the exemption, may still be challenged for cause.

"On the whole, the Court are of the opinion that the statute docs 
not declare all persons exempted [to be] incapable or disabled 
absolutely to serve as jurors, so that a verdict rendered by a 
jury, in which a person exempted shall sit without exception, shall 
be void; but only that all such persons shall be exempted from 
serving at their own election, and sha.ll be liable to be exceptcc 
to, bv either party, if the exception be taken at the impannelling 
[sic]V of the jury," Kunroe v. Brigham, 19 Pick. 368, 3o9-r;0 (l3^1).

See Kochs v. Wolffsohn, 1*0 Hass. 130, 131 (1886) and Commonwealth v. Hayden.,

163 Mass. ^53, ^55 (1895): "Nor does the fact that a juror is exempt absolutel

disqualify him from service. He may be excused at his own election, or he

may be excepted to by any party, but, if he serves, the action of the grand

jury or traverse jury is not made void." In Commonwealth v. DiStasio, 297

Mass. 3V7, cert, denied, 302 U.S. 683 (1923), the court ruled that defense

counsel's assignment of error in the fact that an exempt juror was a member .

of the jury delivering the guilty verdict was without merit merely because

"It was not mentioned at the trial." This judicial interpretation of the

sintute giving counsel power to challenge an exempt juror for cause is further

explained in the Report with Recommend-:tions of Special Committee on Methods o_

Selecting Jurors, pp. 1, 3-^, in 20 Mass.Law Q. at 120 (1936):

"Certain persons liable to serve as jurors are exempt from 
being reouired to serve as such. ... There is of course a clear 
distinction between exemptions from jury service and disquali-

E.g., Commonwealth v. French, 239 N.E.2d 195, Adv. Sh. ^31 (1970).

(13)



fication. If a person serving upon a jury is otherwise qualified 
but is exempt from being liable to serve, as for example being 
\mder twenty-five years of age or over seventy years of age, the 
verdict of the jury will not be set aside as a matter of law, 
although if the defect is called to the attention of the pre­
siding judge before the verdict is rendered the judge may dismiss 
the juror or jury, as the case may be, and should of course do 
so. (emphasis added)0

Plaintiffs contend that as a result of both the internal inconsistency 

of chapter 234 and of judicial interpretation of that chapter, an "exemption" 

from jury service in Massachusetts is effectively an "exclusion" of women with 

children under the age of sixteen. Plaintiffs are further aggrieved because 

volunteering for jury service in the Commonwealth of Massachusetts is illegal: 

"Whoever solicits or requests a registrar of voters, a selectman or an election 

commissioner to put his or any other name on a jury list shall be punished by 

a fine of not more than five hundred dollars or imprisonment for not more than 

one year." Mass.Gen.Laws ch.23;-r, sec,)y. Consequently, the reasoning of the 

decision in White v. Crook, 251 F.Supp. *+01 (M.D.Ala.1966), is fully applicable 

to the case at bar.

B. Sex is a Suspect Classification.

In a recent California decision overturning a state statute excluding 

most women from employment as bartenders, the court stated that:

8The District Court for the District of Massachusetts in U.S. v. Golden,
255 F.-Gupp. 1020 (D.C. Mass. 196*+) 1 cited I .unroe v. Brigham, 19 Pick jJ&B’
(l84l), as a controlling decision holding that "exemption is a matter which 
can be waived." The C-oIden decision stated, at 1021, "Since this court has 
existed, it has recognized the exemptions provided by G.L. c. 234 .§1 as 
reasonable and there is no evidence now that by not including the exemptees 
in the jury lists of this court that any one is conducting a systematic and 
intentional exclusion from the jury lists of any particular economic, social, 
religious, racial, geographical or political group." Golden denied a de­
fendant's motion to dismiss a federal grind jury indictment on the ground 
that the jurors had not been selected according to law. Plaintiffs in the 
case at bar assert that evidence of systematic exclusion of women from jury 
lists hai 
is not a

i now been presented to the court. Unlike Golden, the current action 
general, unsubstantiated allegation of prejudicial exclusion by a 

criminal defendant. Plaintiffs in this case assert their own right to jury 
service and present a documented case of discriminatory practices. In Golden 
this court ruled that "the failure to include in our jury lists those per­
sons exempted under .G.L. c. f*31 in no way violates any constitutional
right of this defendant"— John F. Golden, Jr., a male. In contrast, women 
Plaintiffs in the case at bar present evidence of the violation of their con­
stitutional right to serve on juries.



"[CQlussificntions based on sex should be treated as suspect. ...
Sex, like race and lineage, is an immutable trait, a status info 
which the class members are locked by accident of birth. What 
differentiates sex from non-suspect, statuses, such as intelli­
gence or physical disability, and aligns it with the recognised 
suspect classifications is that the characteristic frequently 
bears no relation to the ability to perform or contribute to 
society. ... The result is that the whole class is relegated 
to an inferior status without regard to the capabilities or 
characteristics of its individual members. ...

"Laws which disable women from full participation in the 
political, business and economic arenas are often characterized 
as 'protective' and beneficial. These same laws applied to 
'racial or ethnic minorities would readily be recognized as in­
vidious and impermissible. The pedestal upon which women have 
been placed has all too often, upon closer inspection, been 
revealed as a cage. We conclude that the sexual classifications 
are properly treated as suspect ..." Sail1er Inn, Inc, v. Kirby,
^85 P.2d 529, 5;tO-5ztl (1971).

The comparison of classification by sex and race —  by female and black —  

can be drawn v/ith such consistency that a shrinking from the conclusion that 

sexual classifications are indeed suspect requires a reliance on stereotypes 

and cliches no longer acceptable or accepted in the latter half of the Twenti­

eth Century. By "1935, in a now-claccic law review article, the parallel had 

already been drawn:

"Not only are race and sex entirely comparable classes but 
there are no others like them. They are large, permanent , un­
changeable, natural classes. No other kind of class is sus­
ceptible to implications of innate inferiority. Aliens, for 
instance, are essentially a temporary class, like an age class.
Only permanent and natural classes are open to those deep, 
traditional implications which become attached to the classes 
regardless of the actual qu lities of the m e m  bera of tLe 
class." Crosier, Constitutional]. ■ y of Discrimination Based on 
Sex, 15 Bo6.U.L.RevT?23t 72^71935). '

The Sail'er Inn decision, supra, recognized this parallelism of prejudice:

"Another characteristic which underlies all suspect classifi­
cations is the stigma of inferiority and second-class citizen­
ship associated with them.... Women, like Negroes, aliens, and 
the poor have historically labored under severe legal and social 
disabilities. Like black citizens, they were, for many years, 
denied the vote and, until recently, the right to serve on juries 
in many states. They are excluded or discriminated against in 
employment and educational opportunities. Harried women in par­
ticular have been treated as inferior persons in numerous laws 
relating to property and independent business ownership and the 
right to make contracts," at 5^0-5^.

The comparison is further elaborated in Murray, The Negro Woman's Stake in

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the Equal Rights Amendment, 6 Hnrv.CR/CL.L.Eev.//2 25.3 (1971):

"The relationship between sexua] and racial prejudice is 
confirmed by contemporary scholarship. The history of western 
culture, and particularly of ecclesiastical and English common 
lav?, suggest that the traditionally subordinate status of 
women provided models for the oppression of other groups. The 
treatment of a woman as her husband's property, as subject to 
his corporal punishment, as incompetent to testify at canon law, 
and as subject to numerous legal and social restrictions based 
upon sex, were precedents for the later treatment of slaves....
Race a.nd sex are comparable classes defined by physiological 
characteristics, through which status is fixed from birth. Legal 
and social proscripts based upon race and sex have often been identical 
and have generally implied the inherent inferiority of the pre­
scribed class to a dominant group. Both classes have been
defined by, and subordinated 
males," at 257. y

the same power group —  v/hite

In addition, an "academic" parallel can be drawn in that for centuries in
t

the United States, neither blacks nor women were deemed worthy of serious 

scholarly attention. Particularly devastating has been the lack of historical 

interestresearch; men have deprived both Negroes and women of their history 

and, as a result, of an important part of their identity, simply by not bother­

ing to discover or tell it.

Gunnar Kyrdal, the Swedish sociologist, in his classic An American Dilemma, 

1077 (2d ed., 1962), explained the further similarity of the "contented" mytho­

logy surrounding both blacks and women:

"As in the Negro problem, most men have accepted as self-evident, 
until recently, the doctrine that women had inferior endowments 
in most of those respects which carry prestige, power, and advan­
tages in society, but- that they were, at the same time, superior 
in some other respects. The arguments, when arguments were used, 
have been about the same: smaller brains, scarcity of geniuses 
and so on. T^e study of women's intelligence and personality 
has head broadly the same history as the one we record for 
Negroes. As in the case of the Negro, v.'omen themselves have 
often been brought to believe in their inferiority of endowment.
As the Negro was awarded his 'place' in society, so there was a 
'woman's place.' In both cases, the rationalisation was strongly 
believed that men, in confining them to this place, did not act

Q
'The similar assignment of stereotypes and discriminatory attitudes —  both sub­
tle and explicit —  toward women and blacks wa*. charted in Hacker, Women as a 
Minority Group, 50 Social Forces 60, 65 (195*0. See Appendix.

Cited by the United States Supreme Court in Brown v. Board of Education, 3^7
U.s. 1185 (195*0 .

10 •

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against. the true interest of the subordinate groups. The 
myth of the 'contented woman,' who did not want to have 
suffrage or other civil rights and opportunities, had the 
same social function as the myth of the 'contented Negro'."

Adding to the power of the sex/race comparison is the historical fact that 

the v/oman's rights movement in the late Nineteenth and early Twentieth Century 

actually grew out of the anti-slavery movement. V/omen were the moving forces ' 

behind much of the abolitionist foment prior to the Civil War, and the alignment 

between white and black women created many of the most moving —  and, to pro­

slavery, anti-feminist forces, most shocking —  moments in that era of reform.

"From the beginning, the women showed great courage; because 
they were overstepping time-honored bounds, they aroused the 
particular fury of adherents of slavery, of whom there were 
many in the North, and mob violence was not. unusual. In Boston 
in 1835 a mob swarmed into the building where [William Lloyd̂ ]
Garrison ^founder of the abolitionist weekly, The Liberator] v/as 
to address the Boston Female Anti-Slavery Society and stormed 
up the stairs to the door of the very room in which the women 
were meeting. Garrison was whisked out a back door ..., and 
the Mayor himself came to beg the women to leave in order to 
avoid physical harm. At the direction of Maria Weston Chapman, 
each white lady present took a colored 'sister' by the hand, 
and two by two, they walked calmly down the stairs and out the . 
building, 'their hands folded in their cotton gloves, their 
eyes busily identifying the genteel leaders of the mob.'"
Flexner, Century of Struggle: The Woman1s Rights Movement in
the United States, 98 (1958).

The moment in which the anti-slavery movement'consciously turned into the 

woman's rights movement came in 18^0 at the World Anti-Slavery Convention in 

London. Having travelled across 3,000 miles of ocean to attend, several dozen 

American women were refused official seating because of their sex. Wendell 

Phillips argued on their behalf on the convention floor (his wife was one of the 

delegates), and William Lloyd Garrison, in protest, refused to present his cre­

dentials or take any part in the proceedings. The refusal, however, stuck. The 

indignant women returned to the United States determined to assert the rights of 

their sex as well as those of the Negro slave. Thus, the suffrage movement grew 

directly —  indeed almost inevitably —  out of the agitation against slavery, 

a campaign most of whose foot soldiers and many of whose officers were women.

The conclusion of the abolitionist-feminists was simple: women are enslaved;



they are the slaves of men, of social custom, of law.

Perhaps the most revolutionary figure —  a symbol of dual radicalsim —  

was Sojourner Truth, a former slave who espoused both abolitionism and feminism. 

It was she who, in the face of a scoffing crowd of clergymen at a women's rights 

convention in Akron, Ohio, in '185'!, strode to the pulpit, removed her bonnet and 

placed it at her feet, faced a hissing audience and argued that women were nei­

ther too timid nor too weak to vote: "The man over there says women need to be

helped into carriages and lifted over ditches, and to have the best place every­

where. Nobody ever helps me into carriages or over puddles, or gives me the 

best place —  and ain't I a woman?" Reporters of the convention indicate that 

she then stunned the crowd into complete attention by raising her bare black arm 

and continuing:

"Look at my arm! I have ploughed and planted and gathered into 
barns, and no man could head me —  and ain't I a woman? I could 
work as much and eat as much as a man —  when I could get it —  
and bear the lash as well! And ain't I a woman? I have born 
thirteen children, and seen most of 'em sold into slavery, and 
when I cried out with my mother's grief, none but Jesus heard 
me —  and ain't I a woman?" Quoted in Flexner, Century of 
Struggle: The Woman's Rights Movement in the United States,
9171958). "

Elisabeth Cady Stanton at the International Council of Women in Washington, 

D.C. , in 1888, pointed out that "[hjalf a century ago, the women of America, were 

bound slaves.... Their rights of person and property were under the absolute 

control of fathers and husbands’. They were shut out of the schools and colleges, 

the trades and professions, and all offices under government ... and denied 

everywhere the necessary opportunities for their best development." Quoted in 

Smith, Laughters of the Promised Land, 1970. The Married Women's Property Acts, 

passed in the mid-l800's, alleviated some of Stanton's laments. Yet numerable 

discriminatory practices still remain —  statutory assignments of the male as 

the head of the household, marriage and divorce laws, disparities in criminal 

sentencing, employment practices, educational opportunities, tax lavs, welfare 

Legislation, and —  in this particular case —  jury service statutes.

(18)



Arguments against shifts in this sexual status quo have the uncomfortable, 

familiar ring of earlier justifications of slavery or "separate-but-eoual" fa­

cilities: again, the sex/race comparison is clear. "In connection with the

modern form of race prejudice," noted Ashley Montagu, Man's Most Dangerous Myth: 

The Fallacy of Dace, 181 (*+th ed., 196*0,

".it is of interest to recall that almost every one of the 
arguments used by the racists to 'prove' the inferiority of 
one or another so-called 'race' was not so long ago used by 
the anti-feminists to 'prove' the inferiority of the female 
as compared wi'h the male. In the case of these sexual pre­
judices one generation has been sufficient in which to discover 
how clearly spurious and erroneous virtually every one of these 
assertions are."

Fortunately, first racism and now sexism --- for the second time in this 

century in the United States —  seem to be going through the same sort of meta­

morphosis. Racial distinctions, once considered "natural," are now unacceptable 

to the larger society. Discrimination on the basis of sex may, too,

"soon be seen as a sham, not unlike that perpetrated in the 
name of racial superiority. Whatever differences may exist 
between the sexes, legislative judgments have frequently been . 
based on inaccurate stereotypes of the capacities and sensi­
bilities of women. In view of the damage that has been inflic­
ted on individuals in the name of these 'differences,' any con­
tinuing distinctions should, like race, bear a heavy burden of 
proof." Note, Sex Discrimination and Equal Protection: Do We
Need a. Constitutional Amendment? , 8'4" Harv.L.Rev. '1W 9, 1503 Tl97l)•

As Justice Peters noted in Sail' er Inn, Inc. v. Kirby, *+85 P.2d 5? 9i 539-5**0, f.i •

"No judge today would justify classifications based on sex by 
resort to such openly biased and wholly chauvinistic state­
ments as this one made by Justice Brewer in Muller pv. Oregon,
?08 U.S. *1-12 (1908)]) : ' [ll] istory discloses the fact that
woman has always been dependent upon man. He established his 
control at the outset by superior physical strength, and this 
control in various forms, with diminishing intensity, has con­
tinued to the present. As minors, though not to the same ex­
tent, she has been looked upon in the courts as needing especial 
care that her rights may be preserved.... Though limitations upon 
personal and contractual rights may be removed by legislation, 
there is that in her disposition and habits of life which will 
operate against full assertion of those rights.... Doubtless 
there are individual exceptions ... but looking at it. from the 
viewpoint of the effort to maintain an independent position in 
life, she is not upon an equality.'"

Nor would one be likely to find today's courts willing to follow the reason-



Court's refusal to admit women to the practice of lav;:

"The natural and proper timidity and delicacy which belongs to the 
female sex evidently unfits it for many of the occupations of 
civil life. The constitution of the family organization, which 
is founded in the divine ordinance, as well as in the nature of 
things, indicates the domestic sphere as that which properly 
belongs to the domain and functions of womanhood.... The para­
mount destiny and mission of women are to fulfil \_sicj the noble 
and benign offices of wife and mother. This is the law of the 
Creator," at ikl. ( B r , J., covicurrwvj')

Likewise, the extreme arguments of the ardent anti-suffragists now seem

ing in brads;-] I v. Illinois, 83 U.f>. 130 O.8?0) , upholding the Illinois Supreme

merely ouaint historical footnotes. Sir Almouth Wright, The Unoxnurgeted Case 

Against Woman Suffrage, 1918, contended that "lt]he woman voter would be per­

nicious to the State not only because she could not back her vote by physical 

force, but also by reason of her intellectual defect," at 88.

Numerous courts have recognized this type of absurdity as absurdity. As 

early as 1918 a Nevada court stated, "[We can with no degree] of logical force 

exclude women from this classification [of eligible jurors] upon the basis 

established by Blackstone, propter defectum sexus, because we have eliminated 

the spirit of the term from our consideration of womankind in modern political 

and legal life," In Parus v. District Court, k? Nev. (1918). Justice

Seawell's dissent in State v. Emery, ??U N.C. 581, 596 (19^0, contained the

recognition of changing social conditions:

"It has not escaped the attention of he courts that the importance 
of the common law jury feature [_that the propter jury consists of 
twelve men— no women] is stil farther reduced because no reason
C a n  r\  -i 1 -A —  ___ J ___ : _ ___  J  -L _ 1 1 .  1:e assigned for its origin or its retention other than the
barbarous view of the inferiority of woman which manifested itself 
in civil and political oppression so akin to slavery that we can 
find no adequate word to describe her present status of eauolity 
with men except emancipation -- a term which is in common use 
in the courts and in the legal profession, and with informed 
laymen."

!Yet, in spite of such professed enlightenment, classification by sex persists 

m  attitudes and in law. As a suspect classification, sex should be considerec 

:m unreasonable categorization upon its face. Just as separate schools for 

lack and white children have been held inherently unequal, Brown v. Board of

(80)



Education, 3^7 U.S. ^83 (195*0» classification on the bar,is of sex is inherently

discriminatory. As Professor Thomas I. Emerson of the Yale Law School faculty 

testified before the Senate Judiciary Committee, 8^th Cong., 2d sess. (1970): 

"Classification by sex, except where the law pertains to a unique physical 

characteristic of one sex, is always unreasonable," at 302.

Plaintiffs strongly urge the court's recognition of sex as a suspect class!

fication requiring strict judicial review and full utilization of Fourteenth

Amendment protections. T^e decision of the Supreme Court in Harper v. Virginia

Bonrd of Elections, 383 U.S. 663, 669 (19^6), held out the promise that, the

"Equal Protection Clause is not shackled to the political 
theory of a parlituAevtr evew In determining what lines are con­
stitutionally discriminatory, we have never been confined -fco 
historic notions of equality, any more than we have restricted 
due process to a fixed catalogue of what was at a given time 
deemed to be the limits of fundamental rights. ... Notions of 
what constitutes equal treatment for purposes of the Equal Pro­
tection Clause do change." (emphasis in original)

I.egal change which will grant women their rights as citizens is judicial 

recognition of sex as a suspect, classification. Solicitous legislation which, 

in effect, denies women full citizenship will continue to perpetuate ineuuities 

of the past until sexual classifications are subject to strict judicial scrutiny 

Plaintiffs argue —  as blacks have argued —  that they themselves have the right 

to determine their "place" in society, rather thamave it dictated to them by 

discriminatory legislation.

The fact that the Massachusetts statute creates classifications of "mothers 

■with children under sixteen years of age" and "women having custody of such 

children" instead of "mothers" and "women" does not. make the categories any 

more acceptable. When sex is recognized as a suspect classification, such 

"sex-plus" classifications (in this instance, sex plus either motherhood or 

custody of children) are also invalid. In another sense, the statute creates 

a sex-plus-age exclusion from the jury lists; i.e., the exemption for women 

■with children under sixteen effectively creates an exemption/exclusion for a 

large number of women under the age of forty-five.



A scries of cases brought pursuant to Title VII of the Civil Rights Act 

of 196;t, k2 U.S.C. k 2000e et. seq., barring discrimination in employment on th 

basic of sex by certain employers has already established the corollary bar to 

"sex-plus" discrimination. Phillips v. Partin Marietta Corp., hOO U.S. 5^2 

(1971) dealt with an employment clause limiting the hiring of women with pre­

school children and was remanded for further fact-finding. Justice Marshall's 

concurring, opinion in the case noted, "When the performance characteristics 

of an individual are concerned, employment opportunity may be limited only 

by employment criteria that are neutral to the sex of the applicant." The 

invalidity of sex-plus classification under Title VII has been upheld in 

Sprogis v. United Air Lines, Inc., 308 F.Supp. 959 (N.D.111.1970) (sex+ 

marriage) and Shattman v. Texas Employment Commission, 330 F.Supp. 328 (W.D. 

Tex.1971) (sex+pregnancy).

As Justice Marshall noted in Phillips, supra, the assumption of particula 

"parental roles" for each sex is improper: criteria, in employment, are to be 

sexually neutral, in the case at bar, the same type of invalid assumption is 

contested by Plaintiffs. The Massachusetts statute exempting mothers assumes 

that those mothers are, by their female roles, responsible for the day-to-day 

care of their children. This assumption is invalid. A sexually neutral clas­

sification is necessary if the classification is to coincide with its osten­

sible purpose; viz., exempting those with child-care responsibilities.

In a widening range of cases, the courts have already held classification 

on the basis of sex to be unreasonable and in violation of the Equal Protectio 

Clause of the Fourteenth Amendment.. The court's clear delineation of ’women's 

right to serve on juries in White v. Crook, 251 F.Supp. T d  (M.D.Ala.1956), 

has already been noted at length. Most recently, a unanimous Supreme Court 

lias brought women under the protection of the Fourteenth Amendment in Peed v. 

Peed, U.S.L.W. November 23, 1971, No. 70-^. In this case, an Idaho statute 

giving males mandatory preference over females in appointments as estate ad-

(22)



' T " T  ““  fc“ld tC “  "— .V S e r e n e ,  jn f ( . v o r  of

* hi ch]  cannot stnnt’ in * *  * -  -  -  — nth COT.

z z z r  de ” y t he ~  ~  -  -  - - ,

Lower federal court decisions reveal the 
I reveal the same reasoning In «?«,•,» u
v. McSorlev's <TM *v,„ „ C* In tl£3derberr~ -----v ti -U-Lci Ale House, Inc 7,nR m e
.. ---------— 308 F‘SuPP- 1?53, 1260-61 (s.D N v ■)o^o\
the court ordered a rmla- 9).

leS'°nly Pub «• »ren it, door, to „OBen.
Practice, supported t, ancient

COn°ePtS> —  »  ^ e
realitie„ f °r’ ”ay °aly * « * * .  aotien iron th. ̂Gaiil,i0o oT evervf^v -

 ̂ y and to perpetuate a- n
and sexual exploitation - h
P c  I. PcSonle^ Old Ale „„use ^  ,
Koupp. 593 (1970) noted. ----- jV?

°f more poetry than almost any othe *** be6n the source
crimination based on sex win be phfnf :onon of life, dis- 
fec11on Clause only if it be-rs* f um5er the Enual PnD-
Z hlt PUr^ose of the classiScation °nalurelati°n to s P e « L  
'.rit ln the argument that +he nre-r’ *** J'°r ao v/e find arv 
nse to 'moral and social problem' ™  in bar“ Fives
can reasonably protect itself bn/exM-fa'1 v,hlch McSorlev's
to’i l w T "  h“Ve n0t Stood « ‘U  since 1theW,nen fr°m tke Remise, n 1 9 to convince a 6-3 maiori-v * +\ h argument was used
women might rationally be rroh^tf r SuPreme Court thad
unless they aero vrfve.̂  on 2  “  £r<»working «  bartender.

Sips, 335 O . S ^ & S f  r Ou'"aeH , of « »  prerises

"m  -  —  K
er area in ,,0t'i0r aren ln which the courts have rrat f 

men i- o. „ • P t f°rward WOfflen's eoual rights
" ]° ln PriEon sentencing. Ir n , n, , C °JU e • ox rel I'n'iir-.o

--------- —  ~ 2 i 2 £  »• X l  F.Supr {
11
On viomen's right to V

Haale fig
~  ’ - 6j1); G'^lagher v. nf ? reasonable exercise 0r

1960's t h r f ^ l ~ ’hai ‘ : * 1^9^ 1969) T”...T77 tup9r* 77,
to be a threat to ? L T e? ^ ° Rer°Cate a«d are s e l  ! t  days of fhe 
Wilson v. Hacker im safct^ and welfare of the u^ . cannot be said
t O T c  (7thfr;a966);Y*Sur'p-2d ^



(D.Conn.I960), the court declared that unequal sentencing laws for men and

women convicted of the same crimes constitutes "invidious discrimination"

against women in violation of the Equal Protection Clause:

"While the Supreme Court has not explicitly determined whether 
equal protection rights of women should, be tested by this rigid 
standard £ the strict scrutiny doctrine of Loving v. Virginia,
388 U.S. 1 (1967)], it is difficult to find any reason why 
adult women, as one of the specific groups that compose humanity, 
should have a lesser measure of protection than a racial group. ... 
Connecticut recognizes no distinction based on the sex of the in­
dividual regarding protection of person or property. It accords 
no higher position to men in such matters than to women. Neither 
should it, in the name of serving their own good or otherwise, 
justify a longer period of deprivation of personal liberty for 
women," at ]A, 16.

Karcmewski v. Baltimore and Ohio Pail Road, ?7k F.Supp. 169 (N.D.I11. 

1969)1 declared

"No reason is apparent v/hich would support the diverse treatment 
accorded to husbands and wives in Indiana on this issue {the right 
to sue for loss of consortium. Earlier decisions had ruled 
that husbands might sue for such a loss, but that a wife's suit 
in negligence for loss of consortium was barredj. It might be 
suggested that the process of history has carved out a definition 
of women's rights based upon a rationale which has ceased to 
exist, but which is based upon a firm precedent," at 175.

l’he cose states that denying women the right to sue for loss of consortium

when men may so sue is in violation of the Equal Protection Clause of the
13Fourteenth Amendment.

hirstein v. Pector and Vj sitors of the University of Virginia, 309 F.Sup 

l8A (E.D.VrJ.970), held that the exclusion of women plaintiffs from the Univer 

sity of Virginia at Charlottesville "...denied their constitutional rights to 

an education equal to that offered to men at Charlottesville and that such 

discrimination on the basis of sex violates the Equal Protection Clause of th 

Fourteenth Amendment," at 187.

3Cb F.Supp. 8?6 (E.D.I*.1969),

Ip
Accord, Libert.i v. York, ?8 Conn. Supp. 9 (1968); Commonwealth v. Daniel, 
*f30 Pa. 6AP (1968). See Commonwealth y. Stauffer, ?l7i Pa.Super. 113 (1969) 
(inequality in sentencing -- men to jail and women to state penitentiary 
—  for the same crimes held unconstitutional).

In Pol? ere v. Southeast ern Louisiana College, 

it was held that requiring women students



under twenty-one years of ace to live on campus solely to fill the dorr.itori02 

and raise revenues for the college, while male students under twenty-one were 

allowed to live off-campus is "... the type of irrational discrimination im­

permissible under the Fourteenth Amendment," at 828.

Cohen v. Chesterfield School Board, 39 U.S.L.U. 2686 (E.D.Va.1971), stated

"The maternity policy of the school board denies pregnant women 
such as {this teacher]... the equal protection of the laws because 
-it treats pregnancy differently than other medical disabilities. 
Because pregnancy, although unique to women, is like other medical 
conditions, the failure to treat it as such amounts to a discrimi­
nation which is without rational basis, and is therefore a vio­
lation of the Equal Protection Clause of the Fourteenth Amend­
ment ."

This holding struck down a requirement that the teacher leave her employment

position once she had reached her fifth month of pregnancy. Ker.gelkoch v.

Industrial Welfare Commission, *+37 F.2d 563 (9th Cir.1971), held that an

Equal Protection challenge to California's maximum hours laws for women posed

a "substantial Constitutional tsicl Question," requiring the convening of a

three-judge district court. T^e court further noted, "Women still differ

physically from tren and still perform maternal functions, but it may be serious

ly questioned whether some or all of the c nditions referred to in the Fuller

Tv. Oregon, 208 U.S. *+12 (1918jl opinion exist today, or if they do exist,L ’ ^
whether they have the same importance as was attributed to them sixty-two years 

ago." Another employment case, Shpritscr v. Io.ng, 22*+ N.Y.S.2d 105 (S.Ct.l96l) 

modified, 23*+ M.Y.S.Pd 285 (1962), affirmed, 2*+l N.Y.S.2d 869 (1963), upheld 

the right of a policewoman to take the examination for the rank of sergeant.

The Supreme Court of the State of New York indicated that a contrary inter­

pretation of the New York City Administrative Code might deprive the plaintiff 

of her constitutional rights: "Such a construction obviates the necessity of

~'"’Accord, Owen v. Illinois Baking Company, ?60 F.Supp. 8?0 (W.D.Mich. 1966) ; 
Millington v. South Eastern Elevator Company, 22 N.Y.2d *t68, 508 (1968); 
Dini v. Naiditch, 20 111.2d *+0'6 (19o0T"; liitaffer v. Argonne Company, 183 
F.2d oil (D.C.Cir.1950).

(25)



passing on the constitutionality of the section. For a construction that it 

authorized discrimination solely because of sex might render it suspect," at

289-90.
The trend of recent decisions in the area of women's rights under the 

Fourteenth Amendment is clear, but further elucidation is needed to give a 

clear sense of the suspect nature of sex-based classification.

C. Jury Service Is a Fundamental Interest of United States Citizens._

The separate classification of mothers with children under sixteen m  

the Massachusetts Jury Law is a classification which affects a fundamental 

interest of the citizens of the United States. Jury service is such a funda­

mental interest. The courts have asserted repeatedly that a jury must be a 

truly representative body, a cross-section of the community, in order to insure 

the criminal defendant's right to a fair trial by an unbiased jury. In its 

decision in Glosser v. United States, 315 U.S. 60, 85-6 0 * 2 ) ,  the Supreme 

Court emphasised the necessity for such a cross-section: .

"£hel officials charged with choosing federal juries may exercise 
some discretion to the end that competent jurors may be called.
But they must not allow the desire for competent jurors to lead _ 
them into selections which do not comport with the concept of a jury 
as a cross-section of the community. Tendencies, no matter how 
slight, toward the selection of jurors by any method other than a 
process which will insure a trial by a representative group are 
undermining processes weakening the institution of jury trial, and 
should be sturdily resisted. That the motives influencing such 
tendencies may be of the best must not blind us to the dangers of 
allowirp any encroGchiDGn't v/hatsoever on th.ii> esaenoial ripn 
Steps innocently taken may, one by one, lead to the irretrievable 
impairment of substantial liberties."

While jury trial is explicitly a fundamental constitutional right of the 

criminal defendant, his interest in a jury pool which represents 0 cross- 

section of the community is not the only such interest. In Thiel v. Southern 

Pacific Co., the Supreme Court granted a new trial to a plaintiff-appellant 

in a civil c-se on the grounds that daily wage earners had been systematically

excluded from the jury list, noting that:

"Recognition must be given to the fact that those eligible for jury 
service are to be found in every stratum of society. Jury compe-

(26)



tence is an individual rathor than a group or class matter. That 
fact lies at the very heart of the jury system. To disregard it is 
to open the door to class distinctions and discriminations which 
are abhorrent to the democratic ideals of trial by jury. 328 U.S. 217 
at 220 (19^6).

That jury service is a fundamental interest of potential jurors as well as 

of criminal defendants, Flaintiffs have established, at pps. k-8, supra. But 

jury service is properly a fundamental interest of the entire community. The 

Supreme Court made this clear in Ballard v_. United States, while explaining that 

a cross-section of the community includes women:

"The systematic and intentional exclusion of women, like the exclu­
sion of a racial group ... or an economic or social class ... de­
prives the jury system of the broad base it was designed by Congress 
to have in our democratic society.... The injury is not limited to 
the defendant— there is injury to the jury system, to the law as an 
institution, to the community at large, and to the democratic ideal 
reflected in the processes of our courts. 329 U.S. 187, at 195 09^6)

The American Bar Association, too, in a series of reports on judicial 

administration has pointed out the importance of the vitality of the jury 

system and the necessity of assuring a true cross-section of the community 

on all juries. The 1933 report of the ABA Section of Judicial Administra­

tion, Committee on Trial by Jury, stated that "Jury service today is the 

chief remaining governmental function in which lay citizens take direct and 

active part, and trial by jury is the best means within our knowledge of 

keeping the administration of justice in tune with the community." This 

tenet is reiterated in subsequent ABA reports, continuing to the present time. 

The Improvement of the Administration of Justice, ABA, 1961, stated: "Methods

of selecting jurors must produce juries which reflect a cross-section of the 

community.... Exemptions from jury service create a problem similar in nature 

to complex qualifications but are more severe in effect. It is time to re­

duce the number of persons excused or excluded from jury service for reasons 

which lack substantial justification." The September, 1968, Approved Draft 

of Standards Relating to Trial by Jury, ABA Project on Minimum Standards 

for Criminal Justice, points to the federal jury statute with full approval,

stating "A fundamental objective of a fair jury system ... is that no person
(27)

1



or class of persons be denied the right to serve on juries on account of race, 

color, religion, sex, national origin, or economic status."

That the ideal of the jury as a representative body is undermined by the 

exclusion of women cannot be doubted— "The exclusion of one Vsex̂ j may indeed 

make the jury less representative of the community than would be true if an 

economic or racial group were excluded." Ballard v. United States, 329 U.S.

187, at 1 9k (19^6). But that ideal is undermined even by the statutory dis­

qualification of one group of women, those with children under sixteen. Since 

women between the ages of 22 and 70 represent 53% of Lexington's jury-age 

population and women ^5 to 70 (whom we can reasonably assume do not fall under 

the statutory exemption) represent only 35% 1 the number of potential woman
ihjurors is automatically cut by one third, a significant underrepresentation.

Clearly it is a fundamental interest of the community as a whole and of 

potential jurors to have a cross-sectional jury system. It is, after all, the 

representative character of the jury which insures a criminal defendant's 

fundamental and constitutionally-guaranteed right to a fair jury trial. To 

maintain such a representative quality, it is a fundamental right of all 

groups or classes of United States citisens no1 to be excluded from jury 

service arbitrarily or capriciously.

D. The Lassachuscl Is Jury Low Kc^nires Strict Scrut1ny.

Under the normal standard governing judicial scrutiny of legislative 

classifications, a classification will be upheld if there is any reasonable 

justification for it:

"The equal protection clause of the Fourteenth Amendment does not 
take from the state the power to classify in the adoption of police 
laws, but admits of the exercise of a wide scope of discretion in

In United Sts t es v. Putera the United States Court of Appeals for the First ' 
Circuit noted that a jury pool 36% female "raises an inference of discrimination 1 
in a population 52% female. ^20 F.2d 56^, at 571. (See discussion of Butera, 
supra, at p.10). While that case involved alleged adninistra.tivc (rather than 
statutory) discrimination, the court emphasised that such an underrepresentation 
was significant (see infra, at pp.VM*-or 0 more complete discussion of the sig­
nificance of statutory imbalance or "underrepresentation" in general). Moreover 
since the statute "exempts" women who can reasonably be assumed to be 22-Ab, it 
creates an additional underrepresentation of persons under b̂ . The court in 
hut era held that persons under 35 were a cognisable group which should not b'e 
substo.nl inlly underrepresented on juries.



that regard, and avoids what is done only when it is without any 
reasonable basis and therefore is purely arbitrary. Lindsley v. 
Natural Carbonic Gas Co., PPO U.S. 61, at ?8 (1911).

However, -the classification in Lindsley distinguished companies employing 

specific business practices (declared by the statute in question to be illegal) 

from companies which did not use those practices. While this economic type of. 

classification comes under the general standard, there are two types of statu­

tory classifications which have been held to require a more stringent, standard 

of judicial review— those which are "inherently suspect" and those which affect 

a fundamental interest of the people. The statutory classification in the 

present case falls into both those categories, as Plaintiffs have established 

supra at 1 7-28.

The standard of judicial review required for statutory 

established as suspect is well stated in Sei Fujii v. State

classifications x (lh«)
, PhP Pac.fS 617^

at 625: "As a general rule a legislative classification will be sustained if

it is reasonable and has a substantial relation to a legitimate object.... 

Where, however, as here, the classification is on the basis of race, it is 

'immediately suspect' and will be subjected 'to the most rigid scrutiny.' 

Koremr-tsu v. United States, 3?3 U.S. 217, 216." The courts have applied the 

strict scrutiny standard of review to suspect classifications including race

(McLaughlin v. Florida, 379 U.S. 187 (19'o7) )» lineage (Korematsu v. Unit ed 

States,' supra!), alienage (Tv hah ashi v,. Fish and Game Commission, 'yj\ U.S. 7-10 

(1978) ) 1 and sex (Sail'er Inn Ir.c. v. Kirby, 735 Pac.2d 529 (1971)).

But even classifications not determined to be inherently suspect require 

strict, judicial scrutiny when they affect the exercise of a fundamental right 

or interest of United States citizens(and residents). "The instant case com­

pels the application of the strict scrutiny standard of review, ... because the 

statute limits the fundamental right of one class of persons to pursue a lawful
‘bin addition, illegitimacy and poverty have been recognised as "quasi-suspect" 
classifications which demand, strict, scrutiny when statutorily coupled with fundsf 
mental or quasi-fundamental interests. Gloria v. American Guarantee Co. , 39'1 U.S 
73 (1968) (illegitimacy); Griffin v. Illinors, 351 U.S. 12 (195^7 (poverty).
See Footnote no. 16 for further discussion.

(29)



of persons to pursue astatute limits the fundamental right of one class 

lawful profession..." Sail'or Inn Inc, v. Kirby, supra, at 539. Fundamental 

interests which require strict scrutiny of all statutory classifications

affecting them include freedom of religion (Sherbert v. Verner, 37*f U.S. 398 

('!963) ); freedom of speech (NAACP v. Button, 371 U.S. 4-15 (1963) ); freedom 

of association (Bates v. City of Little Rock, 361 U.S. 516 (i960) ); the right 

to interstate travel (Shapiro v. Thompson, J>ok U.S. 618 (1969) ); the right to 

vote (harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) ); the 

right to procreate (Skinner v. Oklahoma, 316 U.S. 535 (19^2) ); the right to 

assert familial relationship (Levy v. Louisiana, 391 U.S. 68 (1968) ); the

right to education (Green v. County School Board, 391 U.S. hyO (1965), Brown 

v. Board of Education, 3^7 U.S. ^83 (195;+) ); the right to have access to

criminal process (Griffin v. Illinois, 351 U.S. 12 (1956) ).^°

Because the statutory classification in the present case is suspect it 

requires the application of the strict standard of judicial review. And be­

cause jury service is a fundamental interest similar to those listed above, the 

statutory classification in question demands all the more strongly the appli­

cation of the strict standard. Thus this statute would require strict scru­

tiny even if the classification involved were not suspect.

E. Undo;- Strict Scrutiny, the Sta.1 ute V/ill Fall.

Under the strict scrutiny +0 which the court subjects statutes or pr*ctic? 

which involve suspect classification:-, or fundamental interests, there are at

least five major components of review which make it rore difficult for the 

" "
"The last two interests— education and access to the criminal process— are 
not clearly recognized as "fundamental" in the way that the former interests 
are. However, the courts have at least held that when these two interests 
are juxtaposed with a suspect classification (like race) or with a quasi- 
uepect classification (like economic status), the strict standard of review 
iust be applied. The Court may determine that such a situation is present 
in the instant case: a statute which classifies in a cuspect/quasi-suspect
fashion for the exorcise of a fundamcntal/quasi-fundamental interest must be 
subjected to strict scrutiny.

(30)



statute to stand.

First, the statutory classification must bear a higher degree of relevance 

to the legislative purpose. "Such a lav;, even though enacted pursuant to u 

valid state interest, bears a heavy burden of justification ... and will be up­

held only if it is necessary, and not merely rationally related, to the accom­

plishment of a permissible state policy." McLaughlin v. Florida, 379 U.S. l8*t, 

196 096*0, (statute prohibited cohabitation by interracial couples); Loving v. 

Virginia, 388 U.S. 1 (1967) (state law prohibiting miscegenation is overruled); 

Korematsu v. United States, 3?3 U.S. 21*f (19*0) (Executive Order confining all

Japanese and Japanese-Americans to restricted zones on the West Coast was up-
17

held as necessary to the national security during war-time.)

Second, even "necessary" classifications to accomplish the legitimate strife 

purpose are not acceptable if a non-suspect alternative could be used to achieve 

the same end or if a fundamental right would not have to be abridged in some 

alternative classification. In both McLaughlin, supra, and Carrington v. Hash, 

380 U.S. 89 (1S'65)i the Court wrote that the states had failed to demonstrate 

that their interests could not be served by other available methods, and that 

thus the statutory suspect classifications could not stand. In Katzenbach v. 

Morgan, 38*+ U.S. 6*t1, 655iYhp. Justice Brennan wrote, "The states can be re­

quired to tailor carefully the means of satisfying a legitimate state interest 

when fundamental liberties and rights are threatened."

Thirdly, as a logical corollary to this required increased degree of rele­

vance and urgency, the court's willingness to accept "any conceivable purpose" 

of the statute, with which to match the classification, is of course greatly 

reduced. "These statutes {cannotj be upheld fjust because] there is any possic] 

basis for concluding that they serve a rational purpose." Loving, supra, at 8.

"1 *"7'Although in these three erases, the test of necessity rather than mere rational
relationship is applied to racial classifications, the test 
for cases involving the curtailment of first amendment right 
HA AGP v. Alabama, 357 U.S. *t;+9 (1956); Gaia v. Hew York, 33 h 
Martin v. St rut hers, 319 U.S. 1*1-1, 1*+7 ( 19*13"); Thornhill v.
88, 96 (19*10). (31) “

actually developed 
s. See also 
U.S. 558,36? (1 
Alabama, 310 U.S.

vO



Accord, KcLsrghljn v. Florida, 379 U.S. 184, 191-19,? (1964-); Takahushi v. Fish 

and dare Commission, 334 U.S. 410 (1948); Skinner v. Oklahoma, 316 U.S. 535,

544 (19'i?), (Stone, J. , concurring;); Hall v. St. Helena Parish School Hoard,

197 F.Supp. 64-9, 652, (E.D.La.1961), off'd, 287 F.2d 376 (5th Cir.1961), aff1d 

mem., 368 U.S. 5^5 (1962); Mayflower Farms Inc, v. Ten Eyck, 297 U.S. 266 (1936): 

Sei Fujii v. State, 242 Pac.Sd 617, 625-626 (1952).

As a similar corollary, the court is much less tolerant of over-inclusive- 

ness and under-inclusivencss in classifications than it would be if the rights 

involved were not fundamental or if the classifications were not suspect. Sei 

Fujii, supra.

Finally, under strict scrutiny, the purpose served by the statute or the 

practice must be a "compelling" or "overriding" state interest. "Our inquiry, 

therefore, is whether there clearly appears in the relevant materials some 

overriding statutory purpose.... Vithout such justification, the ... classifi­

cation ... is reduced to an invidious discrimination forbidden by the Equal 

Protection Clause." McLaughlin, supra, at 192-193. Accord, Shapiro v. Thornes or. 

394 U.S. 618 (1969); Korematsu v. United States, 323 U.S. 214- (194-4-); Loving v. 

Virginia-, 388 U.S. 1 (1967); Ka. senbrch v. Forgan, 384 U.S. 641 (1966): Taka- 

hashi, supra; Graham v. Richardson, 39 USLW 4-732 (June 14, 1971). "It is basic 

that no showing merely of a rational relationship to some colorable state inter­

est would suffice; in this highly sensitive constitutional area [constitutional! 

protected rights^ 'only 1 he grave:, abuses, endangering paramount interests,

pave ocean: " Sherbert v.casion for permissible limitation.' [citation omittedTJ 

Verner, 374 U.S. 398, 4o6 (1963). Accord, Bates y. City of Little Pock, 361 U.S 

516 (i960); Skinner, supra; Levy v. Louisiana, 391 U.S. 68 (1968); Dunham v.

Pulsifer, 312 F.Supp. 411 (D.Vi.1970).

In light of these componenLc of rigorous judicial review, it becomes evi­

dent that, the over-broad classification of women in chapter 234 of the Hassachu 

setts General Lavs, denying I he women of Lexington their right to serve as

Schnoidor v. S' - ■ t c. 308 U.S. 147,
u.rr. 4,0 (796:).

i6l-2, 164 (1939); McGowan v. I-torvlmd. 36r- 
(32)



jurors, will not. withstand scrutiny. The classification lacks relevance to its 

ostensible purpose and is not "necessary" and irreplac; J)le for the achievement 

of that purpose. It is over-broad, and it serves no compelling governmental 

interest. This classification must be struck down as a violation of the Eaual 

Protection Clause of the Fourteenth Amendment.

F. Because the Sexual. Classification Bears No Reasonable Relation to the 

Purpose of the Statute, It Carnot be Upheld Even Under Restrained 

Review.

It has been shown that under strict scrutiny (or "active review") —  such as 

that used to examine potentially invidious discriminations, i.e., ones based on 

suspect classifications or affecting fundamental interests —  chapter of 

the Massachusetts General Laws cannot s:and.

Plaintiffs contend finally that even if the court should conclude that 

strict scrutiny is not appropriate for the case at bar —  i.e., even if the 

court should choose to reject the notion that sex is an inherently suspect 

basis for a classification or the notion that the right to serve on a jury is 

a fundamental interest —  still chapter 2jk section one must fall. The statute

must fall because under restrained review (the type of examination which the 

court uses in regular Fourteenth Amendment challenges) two tests are imposed on 

the questioned statute, and if it. fails either test, it cannot stand. The la ­

in question here fails the second test.

When a statute is challenged for creating an unconstitutional classification 

the courts generally loo!: to two aspects of the statute to determine whether or 

not i1 is acceptable. First, the court examines the purpose of the statute to 

make cure that the purpose is permissible. (An impermissible purpose, for exam­

ple, would be one which violates an independent constitutional right.) This 

examination generally relies on the most probable purpose, although occasionally 

the court will rely on any conceivable purpose of the statute which would meet 

the standards of permissibility. This latter test, is used when the court, wishes 

to exercise judicial restraint and to give the legislature the benefit of the

(3d)



doubt, usually in order to guard the "separation of powers." O c c a s i o n a l l y  

.however, the court relies on neither the most probable purpose nor any concei­

vable purpose which would validate the statute, but instead turns to any con­

ceivable purpose which would invalidate it and on those grounds rules the 

statute unconstitutional.

The most, probable purposes of chapter 230 section one are to provide for ' 

the care of children by releasing mothers from the obligation of jury service 

and to reduce the possibility of working hardships on families through the jury 

duty requirement. The purposes of ensuring child-guardianship and reducing 

family hardship are certainly constitutionally permissible. Whether these pur­

poses are reasonably and rationally served by the statutory provisions, however 

is herein called into question.

The second aspect of a challenged statute which the court examines is the 

classification brought into question. Here the court looks to see that the 

classification bears a reasonable relation to the permissible purpose. Under

this restrained review, the legislative judgment normally is given the benefit 

of every conceivable circumstance which night suffice to characterize the clas­

sification as reasonable rather than arbitrary. Linds,ley v. Natural Carbonic 

Gan Co., 220 U.S. 61 (1911) 18

"The Fourteenth Amendment does not deny to states the power 
to treat different classes of aersonn in different

nittcd.3 The Equal Protection Clause of the.4'Citations onil
Amendment docs, however, deny to states the power to legis­
late that different treatment be . 
by a statute into different class

upon some ground of difference having 0 fair and 
relation to the object of the legiclati' 
sons similarly circumstanced shall be t 
tion omitted]." Peed v. Reed, ___ U.S.

to persons rlaced
basis of crite~i a
etatute. A clas-
ory , and rinst resi
ir and sub'E'Cantin'1
.SO that a: 1 rer-
ted alike. » [cita

(November 22, 1

'^Accord, Flemming: v. Nestor, 363 U.S. 603 O 9r>0): Dunaridre v. Williams, 397 
U.S. TTV1 Ti9?0) ? KcGow'.n v. Maryland, 366 U.S. ;i20, T 25-'(j ‘096TJ1 Allied 
Stores of Ohio, Inc." y. Lowers, 35"B~U.S. 522, 523 0959); Railway Exnrc-cs 
Agency, Inc, v. New York, 33(7 U.S. 106, 1tO (19^9).

i



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I

bear a reasonable relation to the purposes of the statute and must he struck 

down as an invidious discrimination in violation of the Fourteenth Amendment to 

the United States Constitution. The ostensible purpose of this statutory pro­

vision is to facilitate the care and supervision of children and to avoid v-ork- 

ing a hardship on those persons responsible for that cure and guardianship. 

However, the statute does not drav; an exemption for those persons with that 

responsibility; it draws an exemption only for women and for all women with 

children under sixteen, regardless of the existence of that responsibility.

Thus the statute is under-broad in providing to child-guardians the benefi 

of an exemption from jury duty: men legitimately responsible for the care of

children are denied this benefit which is extended to women. Although at pre­

sent there are not a statistically significant number of men fulfilling this 

responsibility of child-care on a regular basis, such numbers are increasing 

steadily. In addition, it is laws such as the one in question which discourage 

men from assuming these family responsibilities: men do not receive the socio-

legal benefits from such work that women do. Thus the provisions of chapter 

23*f constitute a kind of self-fulfilling prophesy: They keep women in the

home and men out of it. This, in turn, contributes to the sex-based division 

of labor in society which discourages the full development and utilization of 

diverse skills and resources in all of our citizens.

By the same token, because the exemption is mandatory rather than volun­

tary (see supra at pages 12-1*0 —  so that even women who are not child guard­

ians are excluded from jury service —  the statute is over-broad. Many mothers 

work (see infra at pages *)| - 4 l). Many children under sixteen do not live at 

home and require maternal care. Many children under sixteen work themselves. 

Many mothers have access to and utilize help in the home or child cure facili­

ties. These women arc excluded from jury service by a classification in the 

statute which is far too over-broad to bear any reasonable relation to the 

purposes of guaranteeing care for children. These mothers are denied a benefit

(37)



by this over-breadth, the benefit of serving on juries, engaging in the civic 

life of the community, and being recognized as fully-participating citizens. 

Jury duty is a benefit and a right (soe supra at pages 4-9, P.6-P8), vhich the 

Massachusetts statute is over-broad in restricting.

The flimsiness of the argument that exemption from jury service is a 

pure "privilege," graciously granted to women, is clear. "It is never a pri­

vilege to be considered less than a full citizen with all the obligations, 

rights and responsibilities of citizenship. Equality under the law has come 

to mean both equality of right and equality of responsibility." Kenyon and 

Murray, The Case for Equality in State Jury Service, unpublished 0966).

Jury service in the United States is generally denied only to those groups cc 

siaered either incapable or untrustworthy; e.g., the federal jury statute ex­

cludes service by felons, illiterates, and the physically and mentally ill.

Most pointed of all is the language of the Strauder opinion striking dev:

the West Virginia statute barring blacks from jury service:

"The words of the Fourteenth Amendment, it is true, are prohibito 
but they contain a necessary implication of a positive immunity, or 
right, most valuable to the colored race— the right to exemption 
from unfriendly legislation against them distinctively as colored,- 
exemption from legal discriminations, implying inferiority in civil 
society .—  That the West Virginia statute respecting juries ... 
is such a. discrimination ought not to be doubted." Strauder v. West 
Virginia, 100 U.S. 303, at 307-308. (ifrjo)

The exclusion of Megroes from juries, said the Court, is "practically a brand

upon them, affixed by the law, an assertion of their inferiority."

And women? Surely the same logic holds. An exemption is not a priviler 

to the woman/mother exempteo who wishes to serve, although the legislature 

might have considered it as such when it was granted. The French social cri- 

Harriet Mnrtineuu noted in her report Society in America, I: 199 0837) that 

"Indulgence is given to the American woman as a substitute for justice."

Her observation still holds true in 1971.

In 1930 the Supreme Court, in granting a black student admission to the 

University of Texas I>aw School, took note of the changing concept of "equnlit

(38)



ment," which may in part define it, Sweatt v. Painter, 339 U.S. 629, (1950). Th<

charted. The lack of it in a person is not visible. Yet the right to serve 

on a jury is a right of citizenship, and those women who feel its lack feel 

the brand of a second-class designation.

Citizenship is not a passive concept. The possibility of full use of 

the rights and duties it implies— exemplified, in this instance, by service on 

a jury— enables a citizen to participate constructively in the process of 

justice in our society. To the extent that Plaintiffs are in any v/ay denied 

the same opportunities for service available to other citizens of the state, 

they are limited in their rights. Full citizenship cannot be attained under 

a legal or administrative system which denies women the rights, opportunities, 

and responsibilities granted to others.

Furthermore, the sexual classification in chapter 23*t, section one is im­

permissible because when a statutory classification gives rise to a distribu­

tion of benefits and burdens among the population which is widely discrepant 

from a numerically equal distribution, there must.be some justification for 

the classification. In Concordia Fire Insurance Co. v. Illinois, 292 U.S. 535 

(193*0, the Court held that the distinction between two classes of foreign 

insurance companies in Illinois tax lav.' was an arbitrary and unconstitutional 

discrimination. "Substantial equality and fair equivalence are important fac­

tors in determining the presence or absence of arbitrary discrimination.... 

Mathematical equivalence is neither required nor attainable; ... jas long as^ 

there is substantial equality in the resulting burdens." 292 U.S. at 5*0* 

Similarly, in Mayflower Farms Inc. v. Ten Eyck, 297 U.S. 266 (1936), the Court 

held that although a plaintiff may not attack a numerically equal distribution 

of a benefit or a burden in order to get a lesser burden or a greater benefit 

for himself, he may recover if the distribution deviates from equality without

It carries no doll r value. It cannot be

(39)



a legitimate reason/' "The provision denying the benefit ... t.o all ... works 

a discrimination which has no foundation in the circumstances.... And is there­

fore so unreasonable as to deny appellant the equal protection of the laws in 

violation of the Fourteenth Amendment." 297 U.S. at 272. Accord, Louisville 

Gas and Electric Co. v. Coleman, 277 U.S. 32, 37-38 (1928) . 25

The Massachusetts jury law poses just such a situation. The benefit of . 

jury service is distributed by the law in a way that bears no statistical re­

semblance to the existence of qualified citizens in Lexington. Because the law 

automatically excludes most women under forty-five, thereby reducing the number 

of women available-for the jury pool from 53% to 35% of the Lexington jury-age 

population, the law thus reduces the number of women available for jury duty 

by 3Wo. As a result, onl;. 66% of the eligible females in Lexington are recog­

nized as eligible and allowed fully-participating citizenship. The 3k% exclu­

ded are unfairly burdened with the "brand of inferiority upon them," Strauder v 

West Virginia, 100 U.S. 303, 308 (i860). This is a clear case of "substantial 

^inequality] in the resulting burdens" and deviation from equality without a 

legitimate reason, as cited above (Concordia, at 5^7, see supra at page 39).

In such cases, some justification must be given for the classification. 

Concordia, supra. Where there is none, the court will not create its own.

"Mo reasons for the discrimination are disclosed by the record; and in the ab- 

senoe of such showing, the Court has no right to conjure up possible situations 

which might justify the discrimination." Mayflower Farms Inc, v. Ten Eyck, 297 

U.S. 266 (1936). The court has held repeatedly that when a classification 

creates a distribution of benefits and burdens which is vastly numerically and 

statistically unequal, and this distribution is based on no legitimate reason, 

then the classification violates the Fourteenth Amendment. By this standard, 

chapter 23 ,̂ section one must fall.

22At issue was a Lew York statute which issued only to dealers who had been in 
business before an arbitrary date in 1933 licenses to sell milk below the 
established rate.

(̂ 0)



The court, will note that in Concordin Fire Insurance Co. v. Illii ois, P?2 

U.S. 535 (193*0; Hayflower Forms Inc, v. Ten Eyck, 297 U.S. ?66 (1936); and 

Louisville Gas and Electric Co. v. Coleman, 277 U.S. 32 (1928), the issues were

economic regulation —  the field in which the court is most reluctant to inter­

fere with statutory classifications and distributions. And yet the Court refus­

ed to let gross numerical inequalities stand. In cases of personal or consti-. 

tutional rights, the court is even more solicitous to equality. In Dandridre v. 

Williams, 397 U.S. *f71 (1970), the Court stated that "over-reaching" and "over­

breadth" of classification are highly relevant to cases involving "constitution­

ally protected" rights but much less relevant to cases of "state regulation in 

the social and economic field," at 48*f. (The Court cited as examples of "con­

stitutionally protected" rights interstate travel and first amendment rights.) 

£r;e ttlsq Reynolds v. Sims, 377 U.S. 533 (196*0*. The Eoual Protection Clause 

requires substantially equal legislative representation for all citizens in a 

state, regardless of where they reside. Because the case at bar is clearly a 

case of personal and constitutional rights (see supra at pages *f-9, 26-28), the 

reasons are all the more compelling for the court to invalidate the gross clas­

sification of all "mothers of children under sixteen" as an overbroad, numeri­

cally deviate, and unjustified violation of the Fourteenth Amendment.

The classification "mothers of children under sixteen years of age or 

women having custody of such children" is unreasonable in fact, as well as in 

law because the purpose of the statute would not be frustrated if the classifi­

cation were abolished. That is, many of these women would not be wrenched from 

domestic duties and child-care responsibilities if they were called for jury 

duty. Many are already employed full-time outside the home. Many have access 

to child care facilities. Some have children who live at school, not at home. 

Some have household help. Nor is there a "reasonable" basis for the classifi-

'■\:otc that the same has been held to be true for administrative systems which 
deviate from the standard of numerical equality. As with statutes where this 
occurs, there must be some justification or the system will be struck down as 
unconstitutional, fee infra, at page 2o. Yick V/o y. Noyki , ll8 U.S. 356

('ll)



cution because of society's interest in averting children's alleged emotional 

and physical deprivation due to absent mothers. Modern scholarship has found 

that the classification of "absent" or "'working mother' is not a particularly 

useful category for predicting good or bad effects on children. It depends on 

the circumstances surrounding each case and on the skill and other resources 

available to handle it." Fogarty, Rapoport, and Rapoport, Sex, Career, and 

Family, ^75 0971).

National statistics' show that in 1968 there were 29.2 million women in 

the U.S. labor force; that is, k2% of all women of working age (16 to 6*t). 

Thirty-seven per cent of all workers in the United States were women at that 

time, and when more recent figures become available the per-centage of the fe­

male labor force may well be seen to have risen in the past few years. Since 

19 +̂8, the relative growth of the number of women in the labor force has been 

faster than that of men. The increasing tendency of married women to go to 

work is the single most important factor in this growth of the female labor 

force. In 1968, nearly three out of five women workers ’were married: 58% of
pr

the employed females over the age of sixteen were married (husband present), J 

and only 2 T/o were single. Of all married women (husband present), 37% we re 

employed, and working mothers made up 38% of the full female labor force.

March, 1y6?, statistics point out the prevalence of the working mother no 

matter what age her children:

2k

(1886) (laundry licenses were denied to all Chinese applicants and granted t 
all white applicants); Iiobson v. Hanson, 269 F.Supp. 4oi (D.D.C., 1967), aff 

nor:. Cnuck v. Hobson", k'o'8 F.2d 175 (D.C.Cir., 1969) (neighborhood school 
districting policy created de facto racial segregation, thereby denying bine 
equal educational opportunities).

1969 Handbook on Women bonkers, Women's Bureau, Bulletin ?.$k, United States 
Department of Labor.

"husband present." denotes that the husband lives with the family.

(k P. )

2'5



Citcpory Pur Cent Employed

Mothers with children under 18 38.0
husbands present 35.3

Mothers with children 6-17 only b8.6
husbands present ^5.0

Mothers with children 3-5 3^.5
husbands present 31.7

Mothers with children under 3 25.0
husbands present 23.3

Between 19̂ +0 and 196?, the rate of maternal participation in the labor force 

increased approximately twice as fast- as the rate of general female participa­

tion. This trend is expected to continue. Even more pertinent to Lexington, 

Massachusetts are figures on working mothers with husbands earning over $10,000 

in 1966 (the highest husband-income-bracket for which such figures are avail­

able). Of women with children under eighteen years of age in this husband- 

income category, 25.Wo were employed in March, 1967; 3?.9/6 of women with child­

ren between six and seventeen years of age were working; and, of mothers with 

children under six (in addition, perhaps, to older children), 15*7/6 were in 

the labor force. In the light of such statistics, it is difficult to argue 

that jury service will draw mothers away from the home. Many have already 

chosen to leave during working hours.

It may well be argued in addition that since' the call for jury dury re­

quires a man to leave his job for the duration of the service (and frequently 

to lose wages), the call for a housewife-mother would cause no greater hardship 

than the call for a father, because -during the mother's service the father coul: 

care for the children. Thus the service of either parent would cost one set of 

wages and would not jeopardise child care. Under such a scheme, the law would 

have no basis for a sexual distinction between the parents. Reed v_. Reed,

___ U.S. ___ (November 22, 1971).

Furthermore, inauiry may well demonstrate that most trials do not last 

more than a single day, thereby (and for other similar reasons) enabling jurors

to be at home in the late afternoons and in the evenings. Thus the human costs

of having mothers away from the home would be even smaller, for all children

(̂ 3)



over six years of age would be in school during the vast majority of actual 

jury-hours. In addition, hardship exemptions and exemptions for "persons 

responsible for the care of young children" could protect against any unjust 

burdens which the requirement of jury service might impose: for example, where
?Sthere were pre-school age children in the home.

In short, neither knowledge nor the actual experience of society in the 

second half of the tv/entieth century supports the contention that women either 

need or want to center their lives completely around their offspring. The ar­

gument that woman, "as the center of home and family life," Hoyt v. Florida,

368 U.S. 57, 62 (1961), should be given the opportunity to abstain from exer­

cising her rights and duties of citizenship might have had some cogency before

26Incidentally, few recent studies have served to bolster the argument that 
uch working mothers necessarily damage their children's development:

"The category 'working mother' no longer appears very useful in fore­
casting relationships in a family. It is the circumstances of her 
work that are all important. ... If women who wish to work ... are 
held back from it £~.nd one might perhaps add, 'If women who wish to 
exercise their full rights as citizens of a community are held backO, 
the evidence is that the results are likely to be damaging to their 
families as well as to themselves. ... Mothers' employment tends to 
have positive value for the girls in their families: girls tend to 
became more self-reliant, to be less dependent, and to grow up with a 
wider'range of adult models in mind. ... Where a mother's work appears 
to be damaging to the boys in her family, the right diagnosis may be 
that the root of the damage is not the mother's work but the absence 
of the father or his inadequacy in his role either in the family 01- 
in his job." Fogarty, et. al., Sex, Career, and Family, ik'-lhz (197

Mothers' employment has also been cited as benefit to children in that
provides children with the necessary opportunity to loosen ties with the fe­
male parent and to be exploratory on their own without the continual guidance 
of a particular omnipresent —  and sometimes interpreted psychologically as 
"oppressive" —  individual. Further, it is posited that it is the quality of 
emotional mothering which is crucial to the child, not the actual number of 
hours spent in her presence. Cross-cultural studies have hypothesized that 
over the entire childhood period, with optimal conditions, sharing child care 
among a large group may well yield better results —  defined by the particular 
society and its needs -- than care centered closely around the mother. Mead, 
Deprivation of Maternal Cara, World Health Organization, 1962. See generally 
Maternal Care and Mental Heal!h, WHO, 1962; Hoffman, Review of Child Develop­
ment Research, 196^7 :.yc and Hoffman, The Employed Mother in America, 1963; 
Stolz, "Effects of Maternal Employment on Children,'7Child' Development, i960; 
Siegel and Haas, "The Working Mother: A Review of ReseaTcly'"Child~Develop-
rcent, 1963; Spiro, Children of the Kibbutz, 1958; Rabin, Growing Up in~The~ 
Kibbutz., 1965; Bettelheim, The Children of the Dream, 1969.

m



posed 

As the

v'iion the United states was still a predominantly agrarian society co:/.- 

of large families operating as productive economic units vithir. the he 

society has changed, however, the argument has lost its force.

CONCLUSION

Plaintiffs have shown conclusively that they tire being discriminatorily 

excluded from jury service in Lexington, Massachusetts on account of their s 

both administratively and statutorily. Plaintiffs therefore respectfully ur 

the court to grant the injunctive and declaratory relief they reauest.

Respectfully submitted,

Renee D. Chotiner 
Mary C. Fowler 
Ann L. Greenblatt
Attorneys for Plaintiffs

(V3)



business or occupation of her husband, and th« name, and address 
of his employer of his business; and in the pv»»nt that the 
person listed is unemployed or retired, there shall be ap­
pended an exact description of his last business or occupation, 
and the name and address of his last employer or of his last 
business.

"Such lists shall include not less than one juror for every 
hundred inhabitants nor more than one for every sixty accord­
ing to the latest census, state or national, but in Nantucket 
or Dukes county it may include one for every thirty inhabitants. 
In no event shall a personTs name appear on the jury lists of 
more than three successive years or on more than three jury 
lists in any six year period.

"If any question concerning the preparation of such list 
arises, as to which the board of election commissioners, regis­
trars or selectmen are equally divided, it shall be referred, 
if arising in Boston, to the chief justice of the municipal 
court of the city of Boston, or, in case of his absence or 
disability, to the senior justice thereof, and, if arising 
in any other city or in any town, to the justice of the dis­
trict court within whose jurisdiction such city or ijcojvt lies, 
or in case of his absence or disability to the senior
special justice thereof, and his decision on the question 
shall be final.

"Failure by a registrar of voters or election commissioner 
to comply with the requirements of this section shall be suf­
ficient ground for his removal from office."

HACKER, WOMEN AS A MINORITY GROUP, 30 Social Forces 60, 65 (1951):

Castelj ke Sta tus of Women and Negroes 

Negroes Women

1. High Social Visibility

a. Skin color, other racial char- a. Secondary sex characteristics, 
acteristics.

b. (Sometimes) distinctive dress-- b. Distinctive dress, skirts, etc. 
bandana, flashy clothes.

2. Ascribed Attributes

a. Inferior intelligence, smaller 
brain, less convoluted, scarcity 
of geniuses.

b. More free in instinctual gra­
tifications. More emotional, 
"primitive" and childlike. 
Imagined sexual prowess envied.

c. Common stereotype "inferior."

a. Ditto

b. Irresponsible, inconsistent, 
emotionally unstable. Lack 
strong super-ego. Women as 
"temptresses,"

c. "Weaker."

(5 a)



3. Rationalizations of Status

a. Thought all right in his place.

b. Myth of contented Negro.

a. Supplicatory whining 
tion of voice.

b. Dpferential manner

c. Concealment of real feelings.

d. Outwit "white folks."

e. Careful study of points at 
which dominant group is sus­
ceptible to influence.

f. Fake appeals for directives; 
show of ignorance.

a. Woman's place is in the home

b. Myth of contented woman-- 
"feminine" woman is happy in 
subordinate role.

Atti tudes

Rising inflection, smiles, 
laughs, downward glances.

b. Flattering manner.

c. "Feminine wiles."

d. Outwit "menfolk."

e. Ditto.

f. Appearance of helplessness.

4. Accomodation 

intona- a.

5. Discriminations

a. Limitation in education-- a. Ditto,
should fit "place" in so­
ciety.

b. Confined to traditional jobs-- b. Ditto,
barred from supervisory po­
sitions. Their competition
feared. No family precedents 
for new aspirations.

c. Deprived of political im- c. Ditto,
portance.

d. Social and professional d. Ditto,
segregation.

e. More vulnerable to criticism. e. ^.g., conduct in bars.

6. Similar Problems

Roles not clearly defined, but in flux as a result of social 
change. Conflict between achieved status and ascribed status.