Reed v. Reed Motion for Leave to File Brief and Brief Amicus Curiae

    IN THE

Supreme Court of the United States

Nos. 70-4 and 70-5026

SALLY M. REED, Appellant, 
v.

CECIL R. REED, Administrator, in the Matter of the 
Estate of Richard Lynn Reed, Deceased, Appellee.

CLAUDE ALEXANDER, Petitioner,

STATE OF LOUISIANA, Respondent.

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE AND BRIEF AMICUS CURIAE OF THE 
NATIONAL FEDERATION OF BUSINESS AND PRO­
FESSIONAL WOMEN S CLUBS, INC.

Birch Bayh
Senate Office Building 
Washington, D.C. 20510

Attorney for National Federation 
o f Business and Professional 
Women’s Clubs, Inc.

Wd>n.ngion, D C THIEL. PRESS 202 • 393 0625



(i)

TABLE OF CONTENTS
Page

INTEREST OF A M IC U S ............................................................
STATEMENT OF FACTS .......................................................
SUMMARY OF ARGUMENT ................. ...............................

ARGUMENT .................... ...................................................
I. Sex Discrimination Is a Massive Affront to Fundamental 

Human Liberty and Dignity, with Pervasive and 
Demonstrable Adverse Impact on our Society ...............

II. In the Past, This Court Has Sanctioned Sex Dis­
crimination Whenever It Was Thought To Be
Based Upon Some “Reasonable” Ground ....................

III. There Is Increasing Recognition in the Courts
and Throughout American Society that Sex 
Discrimination Can No Longer Be Justified....................

IV. This Court Should Review Cases Involving Sex 
Discrimination With the “Most Rigid Scrutiny,” 
in Order To Strike Down State Action Which 
Discriminates on the Basis of Sex, Just as This 
Court Has Struck Down other Forms of Personal 
Discrimination Affecting Fundamental Human 
Freedoms, Particularly Racial Discrimination . . . . . . .

V. Under the Facts of the Cases at Bar, and Applying 
the Rigid Scrutiny Demanded by the Equal Pro­
tection Clause of the Fourteenth Amendment, 
the Challenged State Action Must Fall .........................
A. The absolute preference given by Sec. 15-314,

Idaho Code, to males over females as between 
persons equally entitled to administer an estate,
is invalid under the Equal Protection Clause ..........

B. The exclusion of women from juries through 
the operation of Article 402, Louisiana Code 
of Criminal Procedure, is invalid under the
Equal Protection Clause .............................................

CONCLUSION ..........................................................................

3
4

5 
8

15

19

29

34

34

37
40



TABLE OF AUTHORITIES
Cases:
Ballard v. United States, 329 U.S. 187 (1946).............................. 39
Boddie v. Connecticut, 401 U.S. 371 (1971) ...........................  32,36
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969) . . 4, 20

Bradwell v. Illinois, 83 U.S. 130 (1 8 7 2 ).....................................  15, 16
Brown v. Board of Education, 347 U.S. 483 (1954)....................  32
Bunting v. Oregon, 243 U.S. 426 (1917) ................................... 17
Carrington v. Rash, 380 U.S. 89 (1 9 6 5 )........................................ 30
Carter v. Jury Commission of Green County, 396 U.S. 320 

(1970)     39
Caterpillar Tractor Co. v. Grabiec, 317 F. Supp. 1304 

(S.D. 111. 1970)................................................................................ 22
Cohen v. Chesterfield County School Board, Civ. Action 

No. 678-79-R (E.D. Va„ May 17, 1971) ................................... 25
Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968) . . 24
Douglas v. California, 372 U.S. 353 (1963)................. ;................. 31
Estate of Legatos, In re, 1 Cal. App. 3d 657, 81 Cal.

Rptr. 910 (1 9 6 9 ) ........................................................................... 25
Garneauv. Raytheon Co., 3 FEP Cases 215 (D. Mass. 1971) . . .  22

Goesart v. Cleary, 335 U.S. 464 (1 9 4 8 ) ......................... 17, 18, 23, 26
Goldberg v. Kelly, 397 U.S. 254 (1970 ).....................................  31,36
Graham v. Richardson, 39 U.S.L.W. 4732 (1971)......................... 31
Griffin v. Illinois, 351 U.S. 12 (1956) . ...................................... 31
Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) . . .  30
Hoyt v. Florida, 368 U.S. 57 (1 9 6 1 ) ................................  5, 18, 26, 38
Hunter v. Erikson, 393 U.S. 385 (1969)........................................ 33
Kirstein v. Rector and Visitors of University of Virginia,

309 F. Supp. 184 (E.D. Va. 1970) ............................................. 25
Kober v. Westinghouse Electric Corp., 3 FEP Cases 326 

(W.D. Pa. 1971)   22
Local 246, Utility Workers v. Southern Cal. Edison Co.,

320 F. Supp. 1262 (C.D. Cal. 1970) ........................................ 22



Lockwood, In re, 144 U.S. 116 (1893) ........................................  16
Loving v. Virginia, 388 U.S. 1 (1967) ...................................... 32,33
McCrimmon v. Daley, 2 FEP Cases 971 (N.D. 111. 1970) ..........  24
McLaughlin v. Florida, 379 U.S. 184 (1964) ..............................  32
Mengelkoch v. Industrial Welfare Commission,

437 F.2d 563 (9th Cir. 1971)....................................................... 21
Miller v. Wilson, 236 U.S. 375 (1915) ............................. ........... 17
Minor v. Flappersett, 88 U.S. 162 (1874) ...................................  16
Mollere v. Southeastern Louisiana College, 304 F.

Supp. 826 (E.D. La. 1969)............................................................ 24
Mueller v. Oregon, 208 U.S. 412 (1908)......................... 16, 17, 19,21
Paterson Tavern & Grill Owners Ass’n v. Borough of 

Hawthorne, 57 N.J. 180, 270 A.2d 628 (1970).........................  24
Phillips v. Martin Marietta Corporation, 400 U.S. 542 (1971) . . 20
Radice v. New York, 264 U.S. 292 (1 9 2 4 )..................................  17
Reynolds v. Sims, 377 U.S. 533 (1 9 6 4 ) ........................................ 29
Richards v. Griffith Rubber Mills, 300 F. Supp.

338 (D. Ore. 1969) ...................................................................... 22
Ridinger v. General Motors Corp., 3 FEP Cases 280 

(S.D. Ohio 1971) . .................................................. ......................  22
Rosenfeld v. Southern Pacific Company, 3 FEP Cases 

604 (9th Cir. 1971) .....................................................................  21
Sail’er Gun, Inc. v. E.J. Kirby, 3 CCH Employment Practices 

Decisions, para. 8222 (Cal. Supreme Court 1 9 7 1 ) ............... 24
Seidenberg v. McSorleys’ Old Ale House, Inc., 308 F. Supp.

1253 (S.D. N.Y. 1969) ................................................................  24
Shapiro v. Thompson, 394 U.S. 618, 634 (1969)......................  31,39
Shpritzer v. Lang, Matter of, 234 N.Y. Supp. 2d 285 

(1st Dept. 1962), aff’d 13 N.Y. 2d 744, 241 N.Y.
Supp. 2d 869, 191 N.E. 2d 919 (1963) ...................................  25

Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948) . . 31
Truax v. Raich, 239 U.S. 33 (1915) ............................................. 30
United States ex rel. Robinson v. York, 281 F. Supp.

(D. Conn. 1968) ..........................................................................  24



Weeks v. Southern Bell Telephone & Telegraph Co., 408 
F.2d 228 (5th Cir. 1969) ............................................................ 20

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) ............... 17
White v. Crook, 251 F. Supp. 401 (N.D. Ala. 1966) ...............  25,38

Statutes:
Arkansas Stats. Ann., Sec. 46-804, 48-943 ................................... 15
Equal Pay Act of 1963, 29 U.S.C. 206(d) (1964) ....................  10
Executive Order No. 11375, 3 CFR 320 (1967) ......... 9
Executive Order No. 11478, 3 CFR 133 (1970) ......... 9
Idaho Code Sec. 15-312 ......................................................... 4, 5

Sec. 15-314 ............................................................5 ,34,35
Sec. 15-322 ................................................................. 36

Louisiana Code of Criminal Procedure, Article 402 ....................5,37
New York Family Court Act, Sec. 712(b) ...................................... 14
Texas Penal Code 1220 ................................................................. 15
Title VII of the Civil Rights Act of 1964, 42 U.S.C.

Sec. 2000e (1964) ............ ............................................ 6, 10, 20, 27
Utah Code Sec. 76-30-10(4)............................................................ 15

Miscellaneous:
Equal Employment Opportunity Report No. 1, “Job 

Patterns for Minorities and Women” (1 9 6 9 ) ............................  11
Freeman, The Legal Basis of the Sexual Caste System,

5 Valparaiso U.L. Rev. 203, 210-216 (1971).............................. 14

Hearings on the Equal Rights Amendment Before the 
Subcommittee on Constitutional Amendments of the 
Senate Committee on the Judiciary, 91st Cong., 2d 
Sess. (1970).............................................................................  8 ,23,27

Hearings on the Equal Rights Amendment Before 
Subcommittee No. 4 of the House Committee on the 
Judiciary, 92nd Cong., 1st Sess. (1971) ............ ...................  26,27

Hearings on Sex Discrimination Before the Special 
Subcommittee on Education of the House Committee 
on Education and Labor, 91st Cong., 2d Sess., Parts 
1 & 2 (1970) ........................................................................10, 11, 13

(iv)



Murray, Economic and Educational Inequality Based 
on Sex: An Overview, 5 Valparaiso, U.L. Rev. (1971) ............  14

President’s Task Force on Women’s Rights and 
Responsibilities, “A Matter of Simple Justice” (1970) ............ 8, 11

Rossi, Status of Women in Graduate Departments of 
Sociology 1968-69, 5 American Sociologist 1 (1 9 7 0 ) ...............  13

Task Force on Labor Standards, “Report to the Citizens’
Advisory Council on the Status of Women” (1968) ...............  27

U.S. Bureau of the Census, Statistical Abstract of the U.S.:
1970 (91st ed. 1 970 ).......................................................... 9

U.S. Civil Service Commission, Bureau of Management 
Services, “Study of Employment of Women in the 
Federal Government” (1 9 6 8 ) ............ .........................................  10

U.S. Department of Labor, Bureau of Labor Statistics:
Monthly Labor Review (May 1970)............................................. 12

U.S. Department of Labor, Bureau of Labor Statistics:
“Occupational Handbook Bulletin No. 1650” (1 9 7 0 )...............  35

U.S. Department of Labor, Women’s Bureau: “Background 
Facts on Women Workers in the United States” (1970) . . . .  11, 12

U.S. Department of Labor, Women’s Bureau: “Fact 
Sheet on the Earnings Gap” (Feb. 1 9 7 1 ) ............ ......................  11

(v)



IN THE

Supreme Court of the United States

Nos. 70-4 and 70-5026

SALLY M. REED, Appellant, 
v.

CECIL R. REED, Administrator, in the Matter of the 
Estate of Richard Lynn Reed, Deceased, Appellee.

CLAUDE ALEXANDER, Petitioner,

STATE OF LOUISIANA, Respondent.

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE

The National Federation of Business and Professional 
Women’s Clubs, Incorporated, hereby respectfully moves for 
leave to file the attached brief amicus curiae in these cases. 
The consent of both attorneys of record has been received 
in Alexander v. Louisiana. In Reed v. Reed  the consent of 
the attorney for the Petitioner has been received, and the 
consent of the attorney for the Respondent was requested 
but refused. Neither case has yet been set for oral argument, 
and Respondent’s brief in Reed v. Reed is not due to be 
filed until September 7, 1971. Therefore, amicus respect­
fully submits that granting of this motion will not cause

1



2

hardship to any of the parties or delay the resolution of the 
causes.

The interest of the National Federation of Business and 
Professional Women’s Clubs in these cases arises from the 
fact that they squarely present the issue of the degree to 
which the Equal Protection Clause of the Fourteenth 
Amendment guarantees equality of treatment for women 
under the law. One of the primary policy objectives of the 
Federation, which has approximately 180,000 members and 
is open to all working women, has been to eradicate laws 
and practices that perpetuate invidious sex discrimination.
It is believed that the brief which amicus curiae is request­
ing permission to file will contain a more complete argu­
ment on the constitutional issue and a fuller description of 
the factual background surrounding these cases than any of 
the other briefs. If this argument is accepted, it would be 
dispositive of these cases.

Respectfully submitted,

BIRCH BAYH
Senate Office Building
Washington, D.C. 205 10
Attorney for National Federa­

tion o f  Business and Profes­
sional Women’s Clubs, Inc.



IN THE

Supreme Court of the United States

Nos. 70-4 and 70-5026

SALLY M. REED, Appellant, 
v.

CECIL R. REED, Administrator, in the Matter of the 
Estate of Richard Lynn Reed, Deceased, Appellee.

CLAUDE ALEXANDER, Petitioner, 

v.

STATE OF LOUISIANA, Respondent.

BRIEF AMICUS CURIAE OF THE NATIONAL 
FEDERATION OF BUSINESS AND PRO­

FESSIONAL WOMEN’S CLUBS, INC.

INTEREST OF AMICUS

The National Federation of Business and Professional 
Women’s Clubs, Inc. (hereinafter referred to as BPW), is a 
nationwide non-partisan organization dedicated to promot­
ing the interests of business and professional women. It 
is a federation composed of 53 state federations, which in 
turn are composed of 3,800 local clubs. These clubs are 
in operation in every state of the United States as well as 
in the District of Columbia, Puerto Rico, and the Virgin 
Islands. The BPW has approximately 180,000 members.

3



4

Membership is open to any working woman, and the Fed­
eration’s membership includes secretaries, lawyers, assembly 
line workers, clerks, and in short, women engaged in 
virtually every occupation.

In its 52 year existence, the BPW has been particularly 
concerned with securing equality of treatment for women 
under the law. One of its primary policy objectives is to 
eradicate laws and practices that perpetuate invidious sex 
discrimination in violation of the guarantee of Equal Pro­
tection of the Laws. The BPW has long been a supporter 
of the proposed Equal Rights Amendment to the United 
States Constitution, and has testified on behalf of its adop­
tion before both the House and Senate Committees on the 
Judiciary. As an advocate of the strict enforcement of 
the sex discrimination prohibition of Title VII of the Civil 
Rights Act of 1964, BPW filed an amicus brief in Bowe v. 
Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969).

The cases at bar involve the direct application of the Equal 
Protection Clause of the Fourteenth Amendment to State 
laws which patently discriminate against women on the 
basis of sex. The proper application of the Equal Protec­
tion Clause is of immediate and substantial importance to 
the BPW, to the purposes which it endeavors to serve, and 
to women throughout the United States.

STATEMENT OF FACTS

Both cases at bar involve constitutional challenges under 
the Fourteenth Amendment to State laws that systemati­
cally exclude women from the full and equal exercise of 
certain rights because of sex.

In Reed v. Reed, No. 70-4 appellant, as the mother of 
an intestate decedent, filed her petition for probate of the 
estate. Decedent’s father, appellee herein, also petitioned 
for letters of administration. Both parties were equally 
entitled to letters of administration under § 15-312, Idaho 
Code. The probate judge ruled in favor of the father on the



5

grounds that § 15-314, Idaho Code, required that males must 
be preferred to females as between persons equally entitled 
to administer an estate. The probate court order was re­
versed by the Fourth Judicial District Court of Idaho which 
held that I.C. § 15-314 violates the Equal Protection Clause 
of the Fourteenth Amendment of the United States Consti­
tution. The Idaho Supreme Court, reversing the district 
court, upheld the constitutionality of I.C. § 15-314.

In Alexander v. Louisiana, No. 70-5026, petitioner’s con­
viction by the District Court for the 15 th Judicial District 
in Lafayette Parish, Louisiana, was affirmed on appeal by 
the Supreme Court of Louisiana. Petitioner challenged the 
validity of the original indictment on the ground, among 
others, that women were systematically excluded from the 
grand jury list and venire and from the grand jury 
empaneled. The evidence below established that women 
were totally excluded from juries in Lafayette Parish 
because of the operation of Article 402, Louisiana Code 
of Criminal Procedure, which prohibits the selection of a 
woman unless she has filed a written declaration of her 
desire to serve. The Supreme Court of Louisiana rejected 
petitioner’s challenge to the grand jury venire, relying on 
H oyt v. Florida, 368 U.S. 57 (1961), to uphold the exclu­
sion of women. Petitioner contends that the indictment 
against him was invalid and illegal because it was returned 
by a grand jury empaneled from a venire made up in vio­
lation of the Fourteenth Amendment to the Constitution 
of the United States.

SUMMARY OF ARGUMENT

Sex discrimination is a massive affront to our funda­
mental concepts of equality. It imposes a massive psycho­
logical and economic burden on American society. In 
those areas in which the costs can be documented—for 
example, average annual income—and in its immeasurable 
impact on personal dignity, sex discrimination may well 
take an even greater toll than racial discrimination.



6

Much of the discrimination stems directly from State 
action. Federal, State, and local governments employ more 
than 20% of the labor force, and their practices are followed 
by many other employers. Despite the fact that these insti­
tutions ought to serve as a model of nondiscriminatory 
employment, available studies indicate that women are 
relegated almost exclusively to the lowest grades of govern­
ment service. State action in the area of education shows 
a clear and persistent pattern of discrimination against 
women, both in admissions and in access to teaching and 
supervisory positions. Some States continue to discriminate 
against women in their criminal laws. The vast majority of 
States continue to enforce archaic laws—“protective” labor 
legislation, limitations on the right to contract and the right 
to enter business, and so forth-w hich severely restrict 
women who wish to advance and earn promotions in their 
work.

This Court has never struck down any law on the ground 
that it denied the Equal Protection of the Laws to either sex. 
Instead, in a line of cases beginning in 1872, the Court has 
determined that State action fostering or permitting sex dis­
crimination is constitutionally permissible if it appeared 
“reasonable”—and the Court has found every instance of sex 
discrimination with which it has been presented to be “rea­
sonable.” As a result of these cases, the Equal Protection 
Clause has been effectively rendered a nullity as far as sex 
discrimination is concerned.

Today there is increasing recognition in all parts of our 
society that it is neither constitutionally permissible nor 
morally justifiable to subject the majority of our population 
to second class status. Employment opportunities have been 
expanded under decisions construing the sex discrimination 
provisions of Title VII of the 1964 Civil Rights Act. In 
addition to action in the courts, there has been substantial 
action in State legislatures and by State Attorneys General, 
important changes in private institutions and customs, and 
even increased pressure for fundamental constitutional 
change-all directed at the problem of sex discrimination in



7

our society. Moreover, a number of courts have challenged 
the wisdom of—and in some cases effectively overruled—this 
Court’s earlier decisions in cases directly attacking the con­
stitutionality of State laws discriminating on the basis of sex. 
These cases implicitly—and on occasion explicitly—reject the 
premises on which this Court’s earlier decisions rested.

At the same time, a series o f Supreme Court cases has 
struck down other forms of personal discrimination by 
requiring that all such discrimination be “subject to the 
most rigid scrutiny” under the Equal Protection Clause. The 
Court has recognized that when “fundamental” and “indivi­
dual and personal” rights are involved, “strict scrutiny” must 
be exercised by the courts lest such important rights be 
abridged or infringed. This standard of review has been used 
by the Court to overturn discrimination in voting power, 
discrimination against aliens, discrimination against the poor, 
and most importantly, instances of racial discrimination.

Women, too, are entitled to Equal Protection of the Laws 
under the Fourteenth Amendment. Sex discrimination has 
as substantial an adverse impact on our society as the other 
forms of discrimination which this Court has struck down. 
Women have as great a claim to the benefits of the Equal 
Protection Clause as do aliens, indigents, and members of 
racial minorities. The same premises of human dignity and 
fundamental equality that give rise to the Fourteenth 
Amendment demand that its full protection be extended to 
strike down discrimination on account of sex.

In the cases at bar, both the Idaho law which auto­
matically prefers males over females in the administration of 
estates, and the Louisiana law under which women are 
effectively precluded from jury service discriminate entirely 
on the basis of sex, without regard to the personal capabil­
ities or circumstances of the individuals involved. Accord­
ingly, neither can survive the “most rigid scrutiny” man­
dated by the Equal Protection Clause of the Fourteenth 
Amendment, and both decisions below should be reversed.



8

ARGUMENT

I

SEX DISCRIMINATION IS A MASSIVE AFFRONT TO 
FUNDAMENTAL HUMAN LIBERTY AND DIGNITY,
WITH PERVASIVE AND DEMONSTRABLE ADVERSE 
IMPACT ON OUR SOCIETY.

The evidence is overwhelming that persistent patterns of 
sex discrimination permeate our social, cultural, and 
economic life. Much of this discrimination is directly 
attributable to State action, both in maintaining archaic 
discriminatory laws and in tolerating and perpetuating dis­
criminatory practices in employment, education and other 
areas. The social and economic cost to our society, as well 
as the individual psychological impact of sex discrimination, 
are immeasurable. That the majority of our population 
should be subjected to the indignities and limitations of 
second-class citizenship is a fundamental affront to personal 
human liberty. We submit that State action which in any 
way perpetuates this invidious sex discrimination should be 
subject to the strictest application of the Equal Protection 
Clause.

Startling as the revelation might be to many Americans, 
it is a fact that sex discrimination takes an even greater 
economic toll than racial discrimination. In 1968 the median 
earnings of white men employed year-round full-time were 
$7,396, of Negro men $4,777; of white women $4,279, of 
Negro women $3,194. Women with some college education, 
both white and Negro, earn less than Negro men with eight 
years of education.1 That sex discrimination can be even 
more invidious than racial discrimination was eloquently 
demonstrated by Congresswoman Shirley Chisholm in her 
testimony on the Equal Rights Amendment: “I have been 
far oftener discriminated against because I am a woman than 
because I am black.” Hearings on the Equal Rights Amend­

*“A Matter of Simple Justice,” Report of the President’s Task 
Force on Women’s Rights and Responsibilities, 18-19 (1970).



9

ment Before the Subcomm. on Constitutional Amendments 
of the Senate Comm, on the Judiciary, 91st Cong., 2d Sess., 
at 35 (May 1970).

Federal, State, and local governments bear a sub­
stantial responsibility for perpetuating these pervasive 
patterns of sex discrimination. Through discriminatory 
employment practices, through financial support of public 
institutions such as universities, and by permitting archaic 
discriminatory laws to remain in effect, government at all 
levels is implicated in subjecting women to second-class 
treatment. The effect of governmental involvement in sex 
discrimination is magnified far beyond its actual scope since 
governmental policies have traditionally set a standard for 
practices in the private sector.

Sex Discrimination in Employment

Although the vast majority of the labor force is employed 
in the private sector, State, local and federal governments, 
including the military, employ more than 15,000,000 
people—more than 20 percent of the labor force.2 More 
important than the actual numbers suggest, governments are 
often looked to by private employers as models in relation 
to employment practices. Therefore, it is especially disturb­
ing that studies of government employment practices reveal 
patterns of sex discrimination as pervasive as those in the 
private sector.3 For example, although women constituted 
34 percent of all full-time white collar federal Civil Service 
employees in 1967, they filled more than 62 percent of the 
four lowest grades and only 2.5 percent or less of the four

2U.S. Bureau of the Census, Statistical Abstract of the U.S.: 1970, 
Table 325, p. 218.

3 Tire discrimination has persisted in spite of Executive Order 11357, 
3 C.F.R. §320 (1967), and Executive Order 11478, 3 C.F.R. § 133 
(1970) which prohibit sex discrimination in the executive agencies of 
the Federal government, in competitive positions in the legislative 
and judicial branches, and in the government of the District of 
Columbia.



10

highest grades.4 In October, 1969, of the 665,000 women in 
full-time white collar Civil Service positions (33.4 percent of 
the total), 77.8 percent were in the six lowest grade levels. 
In the three-year period 1966-1969, women’s share o f jobs 
in grade levels GS-13 and above rose only slightly, from 3.5 
percent to 3.8 percent.5

Equally pervasive patterns of sex discrimination persist in 
the private sector.6 Whatever the occupation, there is a 
dramatic differential in earnings between men and women at 
every level. The median salary income for women is only 
60.5 percent of that earned by men. The gap in earnings 
is largest for sales workers; women in this category earn less 
than half-41 percen t- of what men doing similar work earn. 
While the wage gap is smallest in clerical, professional, and 
technical fields, women still earn only 65 percent of what 
men earn in those same fields. In 1969, less than 5 percent 
of all full-time women workers earned over $10,000 a year,

4U.S. Civil Service Commission, Bureau of Management Services, 
“Study of Employment of Women in the Federal Government, 1967,” 
at 17 (1968).

5 Statement of Irving Kator, Asst. Executive Director, U.S. Civil 
Service Commission, Hearings on Sex Discrimination Before the 
Special Subcommittee on Education of the House Committee on 
Education & Labor, 91st Cong., 2nd Sess., Part 2, at 728-729 (1970) 
(hereinafter cited as Education Hearings).

6Congress has made several major efforts to alleviate some aspects 
of this discrimination. The Equal Pay Act of 1963, 29 U.S.C. 206 
(d) (1964), requires that employees engaged in interstate commerce 
receive equal pay for equal work. The Act does not cover admin­
istrative, executive, and professional women, nor government em­
ployees. Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e 
(1964), prohibits discrimination based on race, color, religion, national 
origin, or sex by employers with 25 or more employees, employment 
agencies which procure employees for an employer, and labor unions 
which maintain a hiring hall or have 25 or more members. Title VII 
excludes from coverage instrumentalities of the Federal, state, or 
municipal governments except for the U.S. Employment Service, and 
the system of state & local employment services receiving Federal 
assistance.



compared with 35 percent of all male workers. At the 
lowest end of the salary scale, 14.4 percent of women, but 
only 5.7 percent of men, earned less than $3,000.7

Women have traditionally been employed in jobs which 
have less prestige or policy-making power than those to 
which men have access.8 In 1969, women constituted 59 
percent of all service workers, exclusive o f priyate household 
employees.9 A survey of industry conducted the same year 
revealed that while women account for more than 40 per­
cent of all white collar jobs, they hold only one in ten 
managerial positions and one in seven professional jobs.10

The startling disparities in income and employment 
opportunity between male and female workers cannot be 
explained by differences in education. In 1968, the median 
number of years of school completed by women in the total 
work force was 12.4 compared with 12.3 for working men.11 
Yet, women with four years of college education made only 
slightly more than men with an eighth grade education.12 
Nor can the disparities be explained by the assumption 
that women work only for their personal interests, rather 
than for their livelihood. In 1969, at least 12 million women,

7U.S. Department of Labor, Women’s Bureau: “Fact Sheet on the 
Earnings Gap” (Feb, 1971).

8 Recruiting policies are in part responsible for the concentration 
of women in less prestigious jobs. For example, a 1969 survey showed 
that of 208 companies recruiting at Northwestern University, only 
63% were considering female graduates. “Special Report: Why Doesn’t 
Business Hire More College Trained Women?” in Personnel Manage­
ment-Policies & Practices (April 1969), reprinted in Education 
Hearings, Part 1, at 174.

9U.S. Dept, of Labor, supra note 7.

10Equal Employment Opportunity Report No. 1, “Job Patterns 
for Minorities and Women 1966” (1969).

UU.S. Dept, of Labor, Women’s Bureau, “Background Facts on 
Women Workers in the United States” 11-12,1970.

12President’s Task Force, supra note 1.



12

or 40 percent of working women, were self-supporting; fur­
ther, 5.4 million families were totally dependent on the 
earnings of women.13 The conclusion is inescapable that 
the inferior economic position o f working women is the 
direct result of pervasive sex discrimination in both the pri­
vate and the public sector. This discrimination has massive 
adverse impact on the economy of the entire nation, as well 
as on the lives of working women and on the people who 
look to them for economic support.

Sex Discrimination in Education

Another area in which state action contributes directly 
to sex discrimination is in the educational field. Colleges 
and universities have a critical role in determining employ­
ment opportunity for women by providing access to profes­
sional training and careers. Yet widespread patterns of sex 
discrimination are found in the admissions policies and hiring 
practices of institutions of learning throughout the country.

Such discriminatory practices are inextricably tied to 
government both at the State and federal level, in that even 
privately endowed institutions receive substantial federal 
assistance directly through specific grants or indirectly 
through service contracts, research grants, and student loan 
programs. Further, the vast majority of college graduates 
come from state supported institutions, some of which 
expressly discriminate against women. The University of 
North Carolina at Chapel Hill, for example, published in the 
fall of 1969 a “Profile of the Freshman Class” which stated 
that “admission of women on the freshman level will be 
restricted to those who are especially well qualified.” At 
Texas A & M, a land-grant,state-supported university, women 
students are admitted only for summer school sessions, and 
never to the regular academic curriculum, unless they are

13U.S. Dept, of Labor, supra note 11; U.S. Dept, of Labor, Bureau 
of Labor Statistics: Monthly Labor Review (May 1970).



13

related to employees or students, and they wish to pursue a 
course of study otherwise unavailable.

Discrimination against women does not end with admis­
sion to college or graduate school; it pervades every level of 
the teaching profession. Although more than two-thirds of 
the teachers in public elementary and secondary schools are 
women, they constitute only 22 percent of the elementary 
school principals and only 4 percent of the high school prin­
cipals. A recent survey by the National Education Associa­
tion reported that of 13,000 school superintendents, only 
2 were women.14

At the college faculty level, sex discrimination becomes 
even more pronounced. A report on the distribution of 
women faculty at ten high endowment institutions of higher 
education in 1960 showed that the proportion of women 
faculty ranged downward from 9.8 percent o f instructors to 
2.6 percent of full professors.15 A survey of 188 major 
departments of sociology revealed that women accounted 
for 30 percent of the doctoral candidates, but comprised 
only 4 percent of full professors and 1 percent of depart­
mental chairmen.16 Similar studies conducted in public and 
private colleges and universities throughout the country con­

14Testimony of Dr. Peter Muirhead, Associate Commissioner of 
Education, Dept, of Health, Education & Welfare, Education Hearings, 
Part 2, at 644.

15 See Education Hearings for statistical reports & statements on 
the status of women at the following colleges & universities: Brandeis 
at 336; Univ. of Buffalo, SUNY, at 212; Cal. State College at Fullerton, 
at 202; Univ. of Cal. at Berkeley at 1143; Univ. of Chicago at 753, 
994; Columbia Univ. at 242, 260; Cornell Univ. at 1077-78; Eastern 
111. Univ. at 1222, 1223; Harvard Univ. at 183; Univ. of Illinois at 
1225; Kansas State Teachers College at 1226; Univ. of Maryland at 
1024; N.Y.U. Law School at 584; Univ. of Wisconsin at 190.

16Rossi, “Status of Women in Graduate Departments of Sociology 
1968-69,” 5 American Sociologist 1, Feb. 1970.



14

firm this dismal picture of pervasive sex discrimination in 
the academic world.17

Sex Discrimination in State Regulatory and Criminal Laws

Although shockingly archaic in the second half of the 
twentieth century, State laws which severely restrict the 
activities of married women in the business and professional 
world continue to exist. Four States require a married 
woman to obtain a court order before establishing an inde­
pendent business. Eleven States place special restrictions on 
the right of a married woman to contract. In three States, 
a married woman cannot become a guarantor or surety. In 
only five States does she have the right to establish her own 
domicile. In seven of the eight community property States, 
the husband has control over the community property.18

State laws also discriminate against women in other ways. 
In many States, only a woman can be prosecuted for prosti­
tution, and only her conduct, not her male partner s, is 
criminal. Female juvenile offenders are also subjected to a 
double standard; in New York State, for example, they can 
be declared to be “persons in need of supervision” for non­
criminal acts until age 18, while boys are covered by the 
statute only until age 16.19 Yet most States permit girls to 
marry without parental consent at an earlier age than boys, 
presumably because of some State determination that early 
marriage is more appropriate and proper for women than for 
men.

Similar assumptions are reflected in State criminal laws 
which discriminate against women. In Arkansas, for example, 
a woman can be sentenced to 3 years in jail for habitual

17Murray, “Economic and Educational Inequality Based on Sex: 
An Overview,” 5 Valparaiso U.L. Rev. 237, 247-268 (1971).

18These statistics are drawn from Freeman, The Legal Basis of 
the Sexual Caste System, 5 Valparaiso U.L,Rev. 203, 210-216 (1971).

19New York Family Court Act, § 712(b).



15

drunkenness, while a man can receive only 30 days for the 
same offense.20 In Texas and Utah, the defense of “passion 
killing” is allowed to the wronged husband, and not to the 
deceived wife.21

The provisions of Idaho and Louisiana laws challenged in 
the cases at bar are further examples of invidious sex discri­
mination perpetuated by State action. In light of the perva­
sive nature and adverse effect of sex discrimination 
throughout American society, such laws should be subjected 
to the most rigorous judicial scrutiny under the Fourteenth 
Amendment.

II
IN THE PAST, THIS COURT HAS SANCTIONED SEX 
DISCRIMINATION WHENEVER IT WAS THOUGHT TO 
BE BASED UPON SOME “REASONABLE” GROUND.

Since the ratification of the Fourteenth Amendment in 
1868, numerous cases challenging State practices and laws 
perpetuating sex discrimination have been brought before 
this Court. Yet despite evidence that sex discrimination is 
at least as invidious, pervasive, and damaging as racial discri­
mination, this Court has never struck down any law because 
it denied the Equal Protection of the Laws to either sex. 
Because this Court has found every instance of sex discrimi­
nation to be “reasonable” and therefore—according to its 
standard-constitutional, the Equal Protection Clause has 
been effectively rendered a nullity as far as sex discrimina­
tion is concerned.

The first significant case involving sex discrimination was 
Bradwell v. Illinois, 83 U.S. 130 (1872), in which the 
Court upheld the refusal of the Supreme Court of Illinois to

20Ark. Stats. Ann., §§ 46-804,48-943.

21 Texas Penal Code 1220; Utah Code § 76-30-10(4).



1 6

allow women to practice law.22 Although the Court relied 
on the Privileges and Immunities Clause of the Fourteenth 
Amendment and not the Equal Protection or Due Process 
Clauses, the presumptions and attitudes which were to govern 
later decisions sanctioning sex discrimination were already 
apparent:

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 consti­
tution 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 paramount destiny and mis­
sion of women are to fulfill the noble and benign 
offices of wife and mother. This is the law of the 
Creator. (Bradley, J., concurring, 83 U.S. at 141)

Two years later, the Court held that the Fourteenth 
Amendment did not confer on women citizens the right to 
vote, in Minor v. Happersett, 88 U.S. 162 (1874), a 
position which stood until ratification of the Suffrage 
Amendment in 1920.

The test of “reasonableness” for determining the validity 
of sex discrimination under the Fourteenth Amendment was 
first expressly stated in the landmark case of Mueller v. 
Oregon, 208 U.S. 412 (1908), which upheld an Oregon max­
imum hour law for women. It is ironic that Mueller, which 
represented the most progressive thinking of its time, should 
have become the cornerstone of a judicial philosophy which 
upheld almost all forms of discrimination against women as 
“reasonable,” and therefore not in violation of the Equal 
Protection Clause.

22See also In re Lockwood, 144 U.S. 116 (1893), in which the 
Court held that the Fourteenth Amendment did not prohibit Virginia 
from denying women admission to practice before the highest state 
court.



17

In Mueller the Court was responding to the demonstrated 
need for legislative protection of working conditions, a pro­
tection which it subsequently upheld for both men and 
women. Bunting v. Oregon, 243 U.S. 426 (1917). Yet the 
assumptions about women on which the Court based its 
decision in Mueller have become firmly entrenched in judi­
cial doctrine. Finding that the apparent difference in phy­
sical endurance and strength between men and women 
justified the State’s restriction on women’s right to work, 
the Court stated:

That woman’s physical structure and performance 
of maternal functions place her at a disadvantage in 
the struggle for subsistence is obvious . . .  as healthy 
mothers are essential to vigorous offspring, the phy­
sical well-being of woman becomes an object of 
public interest and care in order to preserve the 
strength and vigor of the race . . . 208 U.S. at 421.

Under similar reasoning, the Court sustained other restric­
tive labor laws for women in subsequent years as “reason­
able” under the Fourteenth Amendment. West Coast Hotel 
Co. v. Parrish, 300 U.S. 379 (1937) (minimum wage law for 
women upheld as reasonable exercise of State’s police 
power); Radice v. New York, 264 U.S. 292 (1924) (law 
prohibiting night-time employment of women in restaurants 
not unreasonable or arbitrary classification); Miller v. Wilson, 
236 U.S. 375 (1915) (women’s eight-hour labor law not an 
arbitrary invasion of liberty of contract nor unreasonably 
discriminatory).

Applying the standard of “reasonableness,” the Court 
failed to find constitutional fault with later labor laws 
which appeared to have little if any reasonable justification. 
A good example is the case of Goesart v. Cleary, 335 U.S. 
464 (1948), in which the Court upheld a Michigan statute 
prohibiting all females—other than the wives and daughters 
of male licensees—from being licensed as bartenders. The 
Court reasoned that,

Bartending by women, may, in the allowable leg­
islative judgment, give rise to moral and social prob­



18

lems against which it may devise preventive measures. 
Since the line drawn is not without a basis in reason, 
we cannot give ear to the suggestion that the real 
impulse behind the legislation was an unchivalrous 
desire of male bartenders to monopolize the calling. 
335 U.S. at 466-467.

The Court in Goesart assumed that such patently discri­
minatory legislation could be sustained if it were “reason­
ably” related to the State’s objective in making such a 
classification. The Court did not even explore the possibility 
that a more rigorous constitutional standard should be 
applied. It specifically refused to consider whether the 
statute might reflect an “unchivalrous desire” of males to 
monopolize the bargending trade—as the Court itself noted. 
Moreover, the Court’s concern for protecting women from 
the noxious “moral and social” influences of the barroom 
was misplaced, since Michigan permitted women to work in 
bars, prohibiting them only from employment as bartenders. 
Furthermore, the statute itself exempted the wives and 
daughters of bartenders from its supposed protection.

More recently, in H oyt v. Florida, 368 U.S. 57 (1961), 
the Court upheld a Florida statute providing that no female 
would be called for jury service unless she had registered to 
be placed on the jury list. The Court found that such discri­
mination was permissible under the Fourteenth Amend­
ment, since it was reasonable

. . . for a state, acting in pursuit of the general 
welfare, to conclude that a woman should be relieved 
from the civic duty of jury service unless she herself 
determines that such service is consistent with her 
own special responsibilities. 383 U.S. at 62.

It is this predetermined, generalized conception of the 
nature and role of women that underlies the Court’s past 
decisions finding sex discrimination a “reasonable” exercise 
of the State’s police power. Women as a group have been 
judically viewed primarily as being limited to the home and 
family. Further, they have been regarded as weaker in 
strength and endurance than men and as less able to protect



19

themselves against moral corruption and economic exploita­
tion. While this view may be accurate for some women, it 
might also be accurate for some men. As a generalization, 
it is clearly inapplicable to the vast majority of women in 
our society today. Because of the continued application of 
this outdated conception of the role and nature of women, 
the majority of our population has been subjected to mas­
sive discrimination in the labor market, in education, and in 
virtually every significant aspect of American life.

In the 63 years since Mueller was decided, there has been 
great progress in securing adequate protection for all people 
in the labor force. The need for government to establish 
protective discriminatory legislation has been overcome by 
progress in the private sector, primarily through the recog­
nition and use of collective bargaining to protect the inter­
ests of workers. The benevolent intent of Mueller is no 
longer needed today; in fact, the sex discrimination which 
the Court upheld in Mueller has become a pernicious force 
in excluding women from the full range of opportunity 
available to men. The Equal Protection Clause is flexible 
enough to incorporate this change. State action which per­
petrates sex discrimination should no longer be subjected to 
the test of “reasonableness;” rather, it should be subjected 
to the most rigorous judicial scrutiny under the Fourteenth 
Amendment.

III. THERE IS INCREASING RECOGNITION IN THE 
COURTS AND THROUGHOUT AMERICAN SOCI­
ETY THAT SEX DISCRIMINATION CAN NO 
LONGER BE JUSTIFIED.

In the past few years, there has been significant and sub­
stantial recognition throughout our society that sex dis­
crimination can no longer be tolerated. Increasingly, the 
American people have come to recognize that it is neither 
constitutionally permissible nor morally justifiable to sub­
ject the majority of our population to second-class status. 
This growing trend to reject sex discriminatory practices is 
apparent in the following areas:



20

Title VII enforcement actions.
In August 1969, the Equal Employment Opportunity 

Commission, which administers Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. 2Q00e (1964), ruled that State laws 
which restrict the employment of women are invalidated 
by Title VII. 29 C.F.R. 1604.1 (1970).

Following the lead of the Commission, the Federal courts 
have struck down a number of State restrictive laws and 
private discriminatory practices. Although Title VII does 
not apply “ in those certain instances where . . . sex . . .  is 
a bona fide occupational qualification reasonably necessary 
to the normal operation” of a particular business or enter­
prise, 42 U.S.C. 2000e-2(e) (1964), the Court of Appeals 
for the Fifth Circuit, in the landmark case of Weeks v. 
Southern Bell Telephone & Telegraph Co., 408 F.2d 228 
(5th Cir. 1969), construed this exemption very narrowly. 
The Court held that the company could not rely on an 
arbitrary weight limit to justify its refusal to promote 
women unless it could show “that all or substantially all 
women would be unable to perform safely and efficiently 
the duties of the job involved.”

The Court stated that hiring and promotion rules differ­
entiating on the basis of sex were generally unacceptable 
under Title VII: “Moreover, Title VII rejects just this type 
of romantic paternalism as unduly Victorian and instead vests 
individual women with the power to decide whether or not 
to take on unromantic tasks.” 408 F.2d at 236.

The Seventh Circuit Court of Appeals followed the Weeks 
lead in Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th 
Cir. 1969). The Court held that Title VII proscribed a 
company-imposed weight restriction applied to women only, 
and specifically stated that the company could retain the 
weight lifting limit only if it were applied as a general guide­
line to all employees, male and female alike.

Perhaps the most significant decision in this area is Phillips 
v. Martin Marietta Corporation, 400 U.S. 542 (1971). The 
Court of Appeals for the Fifth Circuit had held below that



21

Title VII allowed an employer to refuse to hire mothers of 
pre-school age children, since sex was not the only factor 
involved in the decision. 411 F.2d 1 (5th Cir. 1969). This 
Court granted certiorari, making Phillips the first case of sex 
discrimination under Title VII to be heard by the Supreme 
Court. In a unanimous decision, this Court ruled that the 
Fifth Circuit had erred in interpreting Title VII as permit­
ting one hiring policy for women and another for men—each 
having pre-school age children. In remanding for a fuller 
development of the record, the Court held that Title VII 
requires persons of like qualifications be given employment 
opportunities irrespective of their sex. Like Phillips, the 
cases at bar present another fundamental question of degree 
in dealing with substantial allegations of sex discrimination.

Within the past few months, the Court of Appeals for the 
Ninth Circuit in Rosenfeld v. Southern Pacific Company, 3 
FEP Cases 604 (June 1971), has struck down a California 
weight and hours law which applied only to women, finding 
that Title VII was intended to invalidate just such discrimi­
natory laws. The Court stated, “The premise of Title VII 
. . .  is that women are now to be on an equal footing with 
men . . . Equality of footing is established only if employees 
otherwise entitled to the position, whether male or female, 
are excluded only upon a showing of individual incapacity.” 
3 FEP Cases at 608.

Another important recent decision from the Ninth Cir­
cuit in the area of employment discrimination is Mengelkoch 
v. Industrial Welfare Commission, 437 F.2d 563 (9th Cir. 
1971).23 While remanding a challenge to a California maxi­
mum hours law for women brought under both the Four­
teenth Amendment and Title VII, the Court struck a blow 
at the continuing viability of Mueller v. Oregon, supra. It 
pointed out that the employment conditions which led to 
the Mueller decision are no longer wholly relevant today.

23Mengelkoch v. Industrial Welfare Commission, 284 F.Supp. 950 
(C.D. Calif.), vacated, 393 U.S. 83, rehearing denied, 393 U.S. 993 
(1968), rev’d and remanded, 437 F.2d 563 (9th Cir. 1971), rehearing 
denied, 3 FEP Cases (May 3, 1971).



22

As the Court stated, “Women still differ physically from 
men and still perform maternal functions. It may be seri­
ously questioned, however, whether some or all of the other 
conditions referred to in the Mueller opinion exist today or, 
if they do exist, whether they have the same importance as 
was attributed to them sixty-two years ago.” 437 F.2d at 
567.

The Federal District Courts have also struck down a num­
ber of State restrictive labor laws applicable only to women 
on the ground that such laws conflict with Title VII and are 
therefore invalid under the Supremacy Clause of the United 
States Constitution.24

As the Courts have recognized in striking down sex 
discrimination in employment, working conditions have 
improved dramatically in the past 63 years. Since 1908 
when Mueller first established the validity of restrictive labor 
laws for women, the overriding and understandable concern 
for protecting women and children from harmful working 
conditions has been the motive force in leading the Courts 
to avoid a strict application of the Fourteenth Amendment 
to sex discrimination. It is undeniable, however, that col­
lective bargaining has become an effective means of protect­
ing workers from exploitive employer practices. Thus, the 
cases which have arisen under Title VII in the past few years 
should be viewed not only as interpretations of Title VII;

24Kober v. Westinghouse Electric Corp., 3 FEP Cases 326 (W.D. 
Pa. 1971) (Penn, statute limiting hours of work of female employees 
invalid); Ridinger v. General Motors Corp., 3 FEP Cases 280 (S.D. 
Ohio 1971) (Ohio weight and hours law applicable only to women 
invalid); Gameau v. Raytheon Co., 3 FEP Cases 215 (D.Mass. 1971); 
(Mass, law limiting maximum hours of employment for women 
invalid); Local 246, Utility Workers v. Southern Calif. Edison Co., 
320 F.Supp. 1262 (C.D. Cal. 1970) (California law prohibiting female 
employees to lift over 50 pounds invalid); Caterpillar Tractor Co. v. 
Grabiec, 317 F.Supp. 1304 (S.D. 111. 1970) (111. Female Employment 
Act hours limitation void); Richards v. Griffith Rubber Mills, 300 
F. Supp. 338 (D. Ore. 1969) (Order of state wage and hour commission 
setting 30 pound lifting limit for women employees invalid).



23

they should also be viewed as implicitly giving judicial 
recognition to the fact that “protective” legislation for 
women is no longer necessary or appropriate. The United 
Auto Workers, one of the largest and most progressive labor 
unions in the country, has long recognized that State pro­
tective laws have been used by employers to deny women 
as a class opportunities to work overtime, to bid on certain 
jobs, work in certain departments and on certain shifts, 
regardless of the fact that an individual woman might have 
had the seniority, skill and ability which should have been 
recognized in any of these situations. See UAW Adminis- 
istrative letter, Vol. 21, No. 10, Nov. 6, 1969, reprinted in 
Hearings on the Equal Rights Amendment Before the Sub­
committee on Constitutional Amendments of the Senate 
Committee on the Judiciary, 91st Cong., 2nd Sess., at 595 
(May 1970). The UAW has urged strict enforcement of 
Title VII and has strongly supported all efforts to eradicate 
sex discrimination, especially through the adoption of the 
Equal Rights Amendment. Mrs. Olga Madar, Vice-President 
of the UAW, testifying for the adoption of the Equal Rights 
Amendment, stated that . . a very strong tide is running 
in behalf of the proposition that American women, while 
they may like candy and roses, really need basic rights still 
denied them. Rights not roses is the watchword for an 
increasing number of American women . . .” Id., at 611.

Sex discrimination held unconstitutional.
In the past few years, courts across the country have 

increasingly recognized the unconstitutionality of State 
action which perpetuates sex discrimination. Many of these 
decisions are based squarely on the ground that sex discrim­
ination must be reviewed under the strictest Fourteenth 
Amendment standard and that seldom if ever can such dis­
crimination withstand careful judicial scrutiny.

Perhaps the most striking progress in eradicating sex dis­
crimination is in the area of occupational restrictions. In 
effect, this Court’s decision in Goesart v. Cleary, 335 U.S. 
464 (1948), has been rejected by the Supreme Courts of



24

New Jersey and California, and by the Federal District 
Court for the Northern District of Illinois. Each of these 
cases involved challenges to laws prohibiting women from 
employment as bartenders, laws which were similar to the 
Michigan statute sustained by this Court in the Goesart deci­
sion, held that the sex discrimination embodied in such occu­
pational restrictions could not be sustained under the Four­
teenth Amendment. McCrimmon v. Daley, 2 FEP Cas. 971 
(N.D. 111. 1970); Sailer Gun, Inc. v. E.J. Kirby, 3 CCH 
Employment Practices Decisions, para. 8222 (Cal. Supreme 
Court, 1971); Paterson Tavern & Grill Owners A ss’n v. 
Borough o f  Hawthorne, 57 N.J. 180, 270 A.2d 628 (1970).

Some of the principal cases striking down sex discrimina­
tion in other areas can be grouped in the following cate­
gories:

(1) Criminal law: Longer prison terms for women than
for men convicted of the same crime have been declared 
unconstitutional under the Fourteenth Amendment. United 
States ex rel. Robinson v. York, 281 F. Supp. (D. Conn. 
1968) (differential sentencing laws for men and women 
constitute “invidious discrimination” against women in vio­
lation of the Equal Protection of the laws guaranteed by 
the Fourteenth Amendment), Commonwealth v. Daniel, 430 
Pa. 642, 243 A.2d 400 (1968) (statutory scheme fixing the 
maximum term of imprisonment for women but not for 
men convicted of the same crime creates an arbitrary and 
invidious discrimination in violation of the Fourteenth 
Amendment).

(2) Public accommodation: Exclusion of women from 
liquor licensed public taverns has been held to violate the 
Fourteenth Amendment. Seidenberg v. McSorleys' Old Ale 
House, Inc., 308 F. Supp. 1253 (S.D.N.Y. 1969). See also, 
Mollere v. Southeastern Louisiana College, 304 F. Supp. 826 
(E'D. La. 1969), in which a federal court held unconstitu­
tional a requirement that unmarried women under 21 live 
in the State college dormitory when no such requirement 
was imposed on men.



25

(3) University exclusion: Exclusion of women students 
from state-supported “prestige” institutions has been held 
to violate the Fourteenth Amendment Equal Protection 
guarantee. Kirstein v. Rector and Visitors o f  University o f  
Virginia, 309 F. Supp. 184 (E.D. Va. 1970).

(4) Mandatory maternity leave: A regulation requiring
a female teacher to leave her job in the fifth month of preg­
nancy has been held to violate her right to Equal Protection. 
Cohen v. Chesterfield County School Board, Civ. Action No. 
678-79-R (E.D. Va. May 17, 1971).

(5) Exclusion from promotion examination: The exclu­
sion of policewomen from the examination required for 
promotion to sergeant solely because of sex has been struck 
down as an impermissible denial of constitutional rights. 
Matter o f  Shpritzer v. Lang, 234 N.Y. Supp. 2d 285 (1st 
Dept. 1962), a ff’d  13 N.Y.2d 744, 241 N.Y. Supp. 2d 869, 
191 N.E.2d 919 (1963).

(6) Inheritance tax: Inheritance tax imposed on certain, 
property when devised by husband to wife, but not when 
devised by wife to husband, has been held to violate the 
Equal Protection guarantee. In re Estate o f  Legatos, 1 Cal. 
App.3d 657, 81 Cal. Rptr. 910 (1969).

(7) Jury service: The statutory exclusion of women
from jury service has been held to violate the Fourteenth 
Amendment’s Equal Protection Clause. White v. Crook,
251 F. Supp. 401 (N.D. Ala. 1966).

The judicial trend apparent from even this small sample 
of cases is clear. Courts across the country are beginning 
to recognize that laws or practices which subject women to 
differential or inferior treatment because of their sex are no 
more constitutionally permissible than other forms of invid­
ious discrimination, particularly racial discrimination. In 
striking down sex discrimination, some courts have adopted 
the “rigid scrutiny” test of the strictest Fourteenth Amend­
ment Equal Protection standard.



26

Increased pressure for adoption of an Equal Rights Amend­
ment to the United States Constitution.

The growing recognition that fundamental changes must 
be made in the legal status of women in this country is 
reflected in the widespread support for an Equal Rights 
Amendment. Although such an amendment has been intro­
duced in Congress for the past 48 years, the mounting pres­
sure in recent years to eradicate sex discrimination resulted 
in its adoption last year by the House of Representatives. 
The Amendment failed in the Senate by only a narrow 
margin.

Much of the motive force behind the proposed Amendment 
is due at least in part to the past unwillingness of this Court 
to apply the Fourteenth Amendment Equal Protection 
guarantee to cases of sex discrimination, as demonstrated 
by Goesart v. Cleary, 335 U.S. 464 (1948), and H oyt v. 
Florida, 368 U.S. 57 (1961). As a result, many women 
feel that the right for full legal equality cannot be won 
in the courts. As Congresswoman Martha Griffiths stated 
in her recent testimony in support of the Equal Rights 
Amendment:

You may ask why a constitutional amendment 
is needed to correct the problem of unfair sex dis­
crimination. Why won’t the Fourteenth Amend­
ment do the job? Because the Fourteenth Amend­
ment has been with us since 1868, and in all those 
years the Supreme Court has never once held 
unconstitutional a law which discriminated on the 
basis of sex. No woman has ever won a case before 
the Supreme Court on the Fourteenth Amendment. 
Hearings on the Equal Rights Amendment Before 
Subcomm. No. 4 of the House Comm, on the Judi­
ciary, 92nd Congress, 1st Session, ser. 2, at 41 
(March 1971).

Many other women who testified in support of the Equal 
Rights Amendment expressed similar views on the Court’s 
unwillingness to strike down sex discrimination under the 
Fourteenth Amendment. They also recognized, and we agree



27

that when this Court does act to end sex discrimination, an 
Equal Rights Amendment would still be desirable, if only 
because of its immense symbolic value. As Caroline Byrd, 
author of “ Born Female,” has stated:

Even if the equal rights amendment did nothing 
but state the principle, it would be worth it . . , the 
time has come when this . , . amendment is both- 
needed and politically feasible. Women are begin­
ning to see their situation. They can never go back 
so we must all go forward. Hearings on the Equal 
Rights Amendment Before Subcomm. on Constitu­
tional Amendments of the Senate Comm, on the 
Judiciary, 91st Cong., 2nd Sess., at 347 (May 1970).

State legislative action to end sex discrimination.
An equally significant indication of the growing recogni­

tion that sex discrimination can no longer be tolerated in 
our society is the increasing number of States that have 
voluntarily rescinded or invalidated restrictive labor legisla­
tion which applies only to women. In 12 States attorneys 
general have ruled that Title VII and state fair employment 
practices legislation supercedes state legislation restricting 
the employment of women. Since the effective date of 
Title VII, July 2, 1965, eight States and the District of 
Columbia have amended or repealed discriminatory legisla­
tion, thereby substantially expanding employment oppor­
tunities for women.25 It seems clear that State governments 
as well as federal and. State courts are coming to recognize 
that sex discrimination is anachronistic and unjustifiable 
both because of the broad application of Title VII and 
because of the unconstitutional nature of such discrimina­
tion.

25These statistics are drawn from Task Force on Labor Standards, 
Report to the Citizens’ Advisory Council on the Status o f  Women 
56-58 (1968), and Ross, “Sex Discrimination and Protective Labor 
Legislation,” in Hearings on the Equal Rights Amendment Before 
Subcomm. No. 4 of the House Comm, on the Judiciary, 92nd Cong., 
1st Sess., at 186 (1971).



28

Elimination of sex discrimination at all levels of American 
society.

Women now participate in occupations and activities which 
were unthinkable in even the recent past. They serve as 
pages in the U.S. Senate, work as professional clowns and 
jockeys, and even play professional football. The U.S. Army 
and Air Force have recently sworn in the first women 
Generals. The Executive Protection Service, an arm of the 
United States Secret Service, has hired a women agent. 
Many religious orders are opening their highest ranks to 
women.

The trend towards eliminating sex-role stereotypes has 
increased the number of opportunities available for men as 
well as for women. Men now work as nurses, airline attend­
ants, and nursery school teachers, professions previously 
considered to be particularly limited to women.

Organizations and institutions which have traditionally 
been almost exclusively male have begun to recognize the 
need to afford women greater representation. Only this 
year, the National Press Club admitted women members for 
the first time in its 50 year history. The New York Stock 
Exchange, exclusively male for 176 years, now permits a 
woman to hold a seat on the Exchange. The Democratic 
National Committee recently adopted a resolution that 
women be represented in State delegations in reasonable 
relationship to their presence in the populations of each 
State. The Republican National Committee last month 
recommended that each State delegation have equal repre­
sentation of men and women. The American Bar Associa­
tion has established a new committee on rights for women.

In short, there has been significant, substantial recogni­
tion throughout our society that sex discrimination can no 
longer be tolerated. Increasingly, the American people have 
come to recognize that women, like all citizens, must be 
accorded equal treatment under law and equal access to 
opportunities in every field of endeavor. In harmony 
with these developments, this Court should explicitly hold



29

that State laws discriminating on the basis of sex will be 
subjected to the “most rigid scrutiny,” as required by the 
Fourteenth Amendment.

IV. THIS COURT SHOULD REVIEW CASES INVOLVING 
SEX DISCRIMINATION WITH THE “MOST RIGID SCRU­
TINY,” IN ORDER TO STRIKE DOWN STATE ACTION 
WHICH DISCRIMINATES ON THE BASIS OF SEX, JUST 
AS THIS COURT HAS STRUCK DOWN OTHER FORMS 
OF PERSONAL DISCRIMINATION AFFECTING FUN­
DAMENTAL HUMAN FREEDOMS, PARTICULARLY 
RACIAL DISCRIMINATION.

The Fourteenth Amendment forbids any State to “deny 
to any person within its jurisdiction the Equal Protection 
of the laws.” State power to prescribe regulatory laws, 
including laws which determine the right to administer an 
estate and the right to serve on juries, is limited by the 
Equal Protection Clause. This Court has traditionally recog­
nized that when fundamental individual rights are infringed 
by State action, such action must be “carefully and meti­
culously scrutinized” under the Fourteenth Amendment.

Thus, in Reynolds v. Sims, 377 U.S. 533 (1964), the 
Court held unconstitutional a State apportionment scheme 
not based substantially on population, stating that

A predominant consideration in determining 
whether a State’s legislative apportionment scheme 
constitutes an invidious discrimination violative of 
rights asserted under the Equal Protection Clause is 
that the rights allegedly impaired are individual and 
personal in nature . . . (A)ny alleged infringement 
of the right of citizens to vote must be carefully 
and meticulously scrutinized. 377 U.S. at 561-62.

Diluting the weight of votes because of place of 
residence impairs basic constitutional rights under 
the Fourteenth Amendment just as much as invidi­
ous discriminations based upon factors such as race, 
Brown v. Board o f  Education, 347 U.S. 483, or



30

economic status, Griffin v. Illinois, 351 U.S. 12, 
Douglas v. California, 372 U.S. 353. Id. at 566.

One year after Reynolds, this Court struck down a State 
limitation on voting qualification in Carrington v. Rash, 380 
U.S. 89 (1965), reasserting the principle that State action 
which infringes “matters close to the core of our constitu­
tional system” cannot be sustained under the Equal Pro­
tection Clause. The Court stated . . By forbidding a 
soldier ever to controvert the presumption of nonresidence, 
the Texas Constitution imposes an invidious discrimination 
in violation of the Fourteenth Amendment.” 380 U.S. at 
96.

The standards of Equal Protection are not static, but 
move with the times. Thus, in Harper v. Virginia Board o f  
Elections, 383 U.S. 663 (1966), in which the Court held 
unconstitutional the Virginia poll tax, the Court stated

the Equal Protection Clause is not shackled to the 
political theory of a particular era. In determining 
what lines are constitutionally discriminatory, we 
have never been confined to historic notions of 
equality, . . . Notions of what constitutes equal 
treatment for the purposes of the Equal Protection 
Clause do change. 383 U.S. at 669 (emphasis in 
original).

Notions of what constitutes equal treatment for the pur­
poses of the Equal Protection Clause have changed drama­
tically in the past 50 years. Within the expanding concept 
of Equal Protection, this Court has subjected an increasing 
number of State laws which impair the exercise of funda­
mental rights to the strictest Fourteenth Amendment review. 
Further, this Court has recognized that State infringement 
of fundamental rights cannot be justified when such limita­
tion of personal freedom is applicable only to one specific 
group within the community.

Thus, in Truax v. Raich, 239 U.S. 33 (1915), this Court 
invalidated a State law which discriminated against aliens 
in private employment. In Takahashi v. Fish & Game Com­



31

mission, 334 U.S. 410 (1948), the Court held that Califor­
nia could not prohibit aliens from making a living by fishing 
off the State shore line, stating that

The Fourteenth Amendment and the laws adopted 
under its authority thus embody a general policy 
that all persons lawfully in this country shall abide 
‘in any state’ on an equality of legal privileges with 
all citizens under non-discriminatory laws. 334 U.S. 
at 420.

Just last Term this Court struck down State laws which 
deny welfare benefits to resident aliens or require them to 
meet longer residence requirements than citizens in order 
to qualify for welfare benefits. Graham v. Richardson, 39 
U.S.L.W. 4732 (1971).

Nor can a State deny fundamental rights to citizens 
because of their poverty. Thus, in Griffin v. Illinois, 351 
12 (1956), this Court held that Illinois could not block 
effective appellate review for the indigent by refusing to 
furnish them trial transcripts without cost. And in Douglas 
v. California, 372 U.S. 353 (1963), this Court overturned a 
California rule of criminal procedure limiting free counsel 
for indigent defendants on appeal to those cases in which 
the court, after a preliminary screening of the case, thought 
counsel would be useful. More recently, in Shapiro v. 
Thompson, 394 U.S. 618 (1969), the Court struck down a 
one-year State residency requirement for welfare benefits, 
stating that

Since the classification here touches on the funda­
mental right of interstate movement, its constitu­
tionality must be judged by the stricter standard of 
whether it promotes a compelling State interest. 
Under this standard, the waiting period requirement 
clearly violates the Equal Protection Clause. 394 
U.S. at 638 (emphasis in original).

In Goldberg v. Kelly, 397 U.S. 254 (1970), the Court ruled 
that the State’s interest in minimizing administrative costs 
did not justify the termination of welfare benefits without



32

a prior hearing. And last Term in Boddie v. Connecticut, 
401 U.S. 371 (1971), the Court held that a State could not 
deny access to the courts in divorce cases solely because of 
a party’s inability to pay court costs.

The most significant use of the Equal Protection Clause 
within the past twenty years, of course, has been in the 
area of racial discrimination. In response to the clearly 
adverse economic, social, and cultural impact of racial dis­
crimination on our society, this Court in 1954 announced 
the landmark decision in Brown v. Board o f  Education, 347 
U.S. 483 (1954), which outlawed racial segregation in the 
public schools. Relying on the Equal Protection Clause, 
the Court stated:

We conclude that in the field of public education 
the doctrine of “separate but equal” has no place. 
Separate educational facilities are inherently unequal. 
347 U.S. at 495.

Since the Brown decision, the Court has strictly applied 
the Fourteenth Amendment to all cases involving racial dis­
crimination. Thus, in McLaughlin v. Florida, 379 U.S. 184 
(1964), the Court struck down a State law prohibiting 
cohabitation of unmarried couples of different races, stating 
that

(T)he central purpose of the Fourteenth Amendment 
was to eliminate racial discrimination emanating trom 
official sources in the States. This strong policy ren­
ders racial classifications ‘constitutionally suspect’ 
and subject to the ‘most rigid scrutiny’ and ‘in most 
circumstances irrelevant’ to any constitutionally 

' acceptable legislative purpose. 379 U.S. at 192.
The Court used similar language about the reach of the 

Equal Protection Clause to strike down a State anti­
miscegenation law in Loving v. Virginia, 388 U.S. 1 (1967):

Over the years, this Court has consistently repudiated 
‘distinctions between citizens solely because of their 
ancestry’ as being ‘odious to a free people whose 
institutions are founded upon the doctrine of



33

equality.’ At the very least, the Equal Protection 
Clause demands that racial classifications, especially 
suspect in criminal statutes, be subjected to the 
‘most rigid scrutiny,’ . . . 388 U.S. at 11 (citations 
omitted).

More recently, in Hunter v. Erikson, 393 U.S. 385 (1969), 
the Court held unconstitutional a city charter amendment 
imposing special barriers to the enactment of fair housing 
ordinances. Reasserting the principle that State imposed 
deprivations of fundamental rights must be subjected to the 
most rigorous judicial scrutiny, the Court said

Because the core of this Fourteenth Amendment is 
the prevention of meaningful and justified official 
distinctions based on race, racial classifications are 
‘constitutionally suspect’ and subject to the ‘most 
rigid scrutiny.’ They ‘bear a far heavier burden of 
justification’ than other classifications. 393 U.S. at 
391-92 (citations omitted).

Sex discrimination has had at least a substantial an adverse 
impact on our society as the other forms of discrimination 
which this Court has struck down under the Fourteenth 
Amendment. Women have as great a claim to the protection 
of the Fourteenth Amendment as do aliens, indigents, and 
members of racial minorities. As demonstrated above, 
women have been subjected to pervasive, invidious discrimi­
nation in employment, in education, and in every field of 
endeavor. Their basic rights as citizens have been denied 
through the operation of archaic, discriminatory State laws 
and practices which have reduced them to inferior status as 
second-class members of this society.

Until the Court recognizes women as persons entitled to 
the full Equal Protection of the Laws, they will continue 
to be denied the equality of treatment basic to our concept 
of democracy. The challenged provisions of Idaho and 
Louisiana law perpetuate the legal inequality accorded 
women throughout our history: they preclude women from 
the exercise of basic statutory rights because of erroneous



34

legislative assumptions about the nature and capabilities of 
women as an entire class. In harmony with this Court’s 
previous holdings that laws which deny fundamental human 
rights must be subjected to the most thorough judicial 
scrutiny, State action which perpetuates sex discrimination 
should be held unconstitutional.

V. UNDER THE FACTS OF THE CASES AT BAR, AND 
UTILIZING THE RIGID SCRUTINY DEMANDED BY 
THE EQUAL PROTECTION CLAUSE OF THE FOUR­
TEENTH AMENDMENT, THE CHALLENGED STATE 
ACTION MUST FALL.

A. The Absolute Preference Given by Section 
15-314, Idaho Code, to Males Over Females 
As Between Persons Equally Entitled to 
Administer an Estate, Is Invalid Under the 
Equal Protection Clause.

As indicated by the court below, Section 15-314 embodies 
a legislative judgment that men are in general better quali­
fied to act as administrators than are women. No evidence 
was provided, however, that the male contestant, as an 
individual, was more capable in financial matters than the 
female contestant, appellant herein. Thus, on the basis of 
a vast and inaccurate legislative classification, appellant was 
deprived of the substantive right to administer the estate of 
her deceased son.

It is precisely this type of sweeping legislative classifica­
tion based on sex that this Court should subject to the 
most careful judicial review. Even on its face, the legisla­
tive assumption underlying Section 15-314—that women are 
generally less able than men to administer an estate—is 
invalid. As discussed above, the participation of women in 
the business world has grown dramatically in the past decade. 
Further, women represent an increasingly significant portion 
of those professions particularly related to financial manage­
ment. In 1968, women constituted 20 percent of the total



35

number of accountants in this country, 10 percent of the 
total number of mathematicians, and 33 percent of the total 
number of statisticians.26 In light of the demonstrated 
competence of some women to perform these highly tech­
nical jobs, the Idaho legislature was clearly proceeding on 
unwarranted, inaccurate assumptions about the abilities of 
women as a class.

Moreover, it is questionable whether extensive business 
experience is necessary for the performance of the duties 
of an administrator under the Idaho Code. The Code con­
fers very limited authority upon the administrator, and 
empowers the court to supervise the estate closely during 
the entire period of administration. It is probable that most 
women, many of whom handle the daily financial affairs of 
their family units, would be as qualified to perform the 
duties of an administrator as most men would be.

Although the Idaho Supreme Court recognized that 
Section 15-314 discriminates against women on the basis of 
sex, it sustained the provision as a legitimate exercise of the 
State’s interest in curtailing litigation over the appointment 
of administrators. The court stated,

While this classification may not be entirely accur­
ate, and there are doubtless particular instances in 
which it is incorrect, we are not prepared to say that 
it is so completely without a basis in fact as to be 
irrational and arbitrary. 465 P.2d 635, 638 (1970).

However, Section 15-314 achieves the presumed legislative 
objective of curtailing litigation only when a contest arises 
between males and females who are otherwise equally quali­
fied under the Idaho Code to administer an estate. In most 
situations in which there are more than one contestant from 
the same eligibility class, hearings must be held. In fact, 
the Idaho Code invites hearings by providing that “ any per­
son interested” may challenge the competency of an admin-

26U.S. Dept, of Labor, Bureau of Labor Statistics: Occupational 
Handbook Bulletin No. 1650 (1970).



36

istrator. Idaho Code, Sec. 15-322. It is only when one of 
the contestants within an eligibility class is female that the 
absolute statutory preference for males operates, thus elim­
inating the necessity for hearings.

This Court has held that certain basic statutory rights 
cannot be sacrificed to considerations of administrative 
efficiency. In Goldberg v. Kelly, 397 U.S. 254 (1970), the 
Court ruled that the Fourteenth Amendment requires that 
hearings be held before welfare benefits are terminated, 
even if such hearings cause the State substantial expense 
and administrative inconvenience. More recently, in Boddie 
v. Connecticut, 401 U.S. 371 (1971), the Court held that 
the Fourteenth Amendment prohibits a State from denying 
indigents access to the courts in divorce cases solely because 
of their inability to pay court fees and costs. The Court 
reasserted the fundamental principle that:

The State’s obligations under the Fourteenth 
Amendment are not simply generalized ones; rather, 
the State owes to each individual that process which, 
in light of the values of a free society, can be char­
acterized as due. 402 U.S. at 380.

Idaho, by automatically preferring male over female con­
testants as between persons equally qualified to administer 
an estate, has denied petitioner the right to a hearing on her 
individual capabilities as an administrator. This statutory 
denial of an opportunity to be heard was justified by the 
court below solely on the grounds of administrative con­
venience. Such a deprivation of fundamental rights because 
of sex cannot withstand the strict judicial scrutiny required 
by the Fourteenth Amendment.



37

B. The Exclusion of Women From Juries Through 
the Operation of Article 402, Louisiana Code of 
Criminal Procedure, Is Invalid Under the Equal 
Protection Clause,

The Louisiana statute raises two different but related 
Fourteenth Amendment issues for the Court’s consideration: 
first, whether the Equal Protection Clause permits a State 
to establish a different system of jury selection for women 
than for men; and second, whether petitioner’s right to due 
process was violated by the operation of a State law which 
systematically excludes women from juries.

The challenged provision places an affirmative burden on 
women who wish to serve on juries by excluding them auto­
matically from jury duty unless they file with the Court a 
declaration of willingness to serve. This statutory burden 
is made even greater by the official interpretation of Article 
402. The jury commissioners obtain an initial list of poten­
tial jurors from a variety of sources and preliminary ques­
tionnaires to determine eligibility. However, questionnaires 
are deliberately not sent to women. As a result of this 
official policy, the jury list, the grand jury venire, and the 
grand jury that indicted petitioner contained no women at 
all, even though women constitute a majority of the persons 
eligible to serve in Lafayette Parish. Thus, the effect of the 
challenged provision is to exclude systematically all women 
from jury service.

Through the operation of Article 402, all women are 
placed in an inferior position to exercise their right to serve 
on juries. Jury service is a fundamental prerequisite of citi­
zenship; it is generally denied only to those groups who are 
considered to be incapable or untrustworthy, such as felons 
and mental incompetents. In Louisiana, women are placed 
in a similarly excepted category. Thus, the effective exclu­
sion of women from jury service clearly labels them as 
second-class citizens.

Presumably, the legislative assumption underlying the 
challenged provision is that women as a class are more likely



38

than men to have family responsibilities that would make 
jury service a hardship. It was precisely such a purpose that 
this Court found constitutionally permissible in H oyt v. 
Florida, 368 U.S. 57 (1961), holding that a State could rea­
sonably conclude “ that a woman should be relieved of jury 
service unless she herself determines that such service is con­
sistent with her own special responsibilities.” 383 U.S. at 
62. Amicus submits that H oyt was wrongly decided.

Although H oyt also involved a statute which did not 
absolutely prohibit women from serving on juries, the oper­
ation of the Florida statute did not exclude women as sys­
tematically as does the challenged Louisiana provision. In 
H oyt the Court found that there were women on the jury 
rolls in the county, and that efforts had been made to 
include all eligible women on the rolls. In the case at bar, 
no women whatsoever were included on the jury lists, and 
virtually no effort seems to have been made to solicit their 
participation. Thus, the Louisiana provision, as interpreted 
by the State, effectively prohibits women from serving on 
juries. This case is just as compelling as White v. Crook, 
251 F. Supp. 401 (N.D. Ala. 1966). There, a three-judge 
Federal district court struck down an Alabama statute 
which absolutely excluded women from jury service. The 
Louisiana statute, like the Alabama statute in White v. 
Crook, should be viewed by this Court as “ arbitrary in view 
of modern political, social and economic conditions . . . ” 
251 F. Supp. at 409.

The systematic exclusion of all women from juries in 
order to relieve those women whose family responsibilities 
might make jury service a hardship cannot be sustained under 
a strict application of the Fourteenth Amendment. It is 
precisely this type of vast legislative overclassification based 
on sex that the Court should not allow. First, many women 
dd not have children to care for. Second, in some cases, as 
where the father is a widower, the absence of a male parent 
can be just as detrimental to a child’s welfare as the absence 
of the female parent, and jury duty may place an equally 
great burden on him. Third, even when both parents are



39

alive and well, the mother is not always the individual pri­
marily responsible for child care. Thus, the Louisiana statute 
sweeps too broadly in effectively excluding all women from 
jury service if in fact its purpose is to relieve only those 
persons whose parental responsibilities would make jury 
service unduly onerous. A more effective and constitution­
ally permissible means of achieving this purpose would be 
to excuse from jury service those persons, male and female, 
whose family responsibilities preclude them from serving. 
By discriminating against women as an entire class, the 
statute effectively denies women the Equal Protection of 
the laws, and should be struck down.

The operation of the Louisiana statute also denies peti­
tioner his due process right to a jury venire from which no 
class has been arbitrarily excluded. This Court has specific­
ally recognized that a jury must be “a body truly represen­
tative of the community.” Carter v. Jury Commission o f  
Green County, 396 U.S. 320 (1970). A system of jury selec­
tion that totally excludes women cannot be said to be truly 
representative of the community. In Ballard v. United 
States, 329 U.S. 187 (1946), the Court applied this principle 
to the administration of federal jury selection statutes, find­
ing that “ . . . a distinct quality is lost if either sex is excluded. 
The exclusion of one may indeed make the jury less repre­
sentative of the community than would be true if an eco­
nomic or racial group were excluded,” 329 U.S. at 194. In 
the case at bar, over half of the persons eligible for jury 
service were women. The systematic exclusion of this group 
from jury selection clearly denied petitioner his right to be 
judged by a cross-section of the community.

The denial of this fundamental constitutional right can­
not be justified unless a compelling need for the classifica­
tion is shown. Shapiro v. Thompson, 394 U.S. 618, 634 
(1969). As discussed above, the State has not met the bur­
den of demonstrating that the purpose of the statute, which 
presumably is to exempt women whose family responsibilities 
would make jury service unduly burdensome, cannot be met 
by more narrow means that will not result in the denial of



40

basic constitutional rights. On the contrary, the Louisiana 
provision effectively excludes all women, regardless of their 
family responsibilities, from jury selection. Accordingly, 
this Court should strike down Article 402 under the strictest 
interpretation of the Fourteenth Amendment.

CONCLUSION

For the reasons stated above, the “reasonableness” stand­
ard for reviewing State action which discriminates on account 
of sex should be abandoned. Such action should be subject 
to the very strictest scrutiny under the Equal Protection 
Clause. The challenged provisions of Louisiana and Idaho 
law which perpetuate invidious, unjustifiable sex discrimina­
tion should be struck down under the very strictest applica­
tion of the Fourteenth Amendment. In Reed v. Reed, this 
Court should reverse the decision below so that an adminis­
trator can be chosen without regard to sex. In Alexander 
v. Louisiana, this Court should reverse the decision below 
so that petitioner may be indicted by a properly constituted 
grand jury.

Respectfully submitted,

BIRCH BAYH 
Senate Office Building 
Washington, D.C. 20510
Attorney for National Federa­

tion o f  Business and Profes­
sional Women’s Clubs, Inc.



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