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Women in the Law

One of the best cases to illustrate the Supreme Court’s traditional approach to the Equal Protection Clause and sex discrimination is Goesaert v. Cleary (1948). At the time, the test of constitutionality in place for most discriminatory laws was quite weak.6 The Court would accept a state’s power to separate people into groups and treat them differently as long as such unequal treatment was not arbitrary. In other words, what the Equal Protection Clause did was prohibit totally capricious laws. When a state’s laws treated women differently, all the state government had to do was give some reason that sounded plausible. This was a little tricky in the Goesaert case because Michigan had a law that prohibited women from being employed as bartenders, yet made an exception for the wife and daughters of a male owner but not of a female owner of a bar. Thus, Michigan had to show why it made sense to keep most but not all women out of the bartending occupation. Justice Frankfurter’s opinion applying the equal protection test to Michigan’s defense of its law shows that he was easily convinced. He stated that the “Constitution in enjoining the equal protection of the laws upon states precludes irrational discrimination as between persons and groups of persons.” Bartending by women might give rise to social and moral problems (thus justifying banning women), but the legislature was rational in believing that a husband and father who owned the bar would be “sufficient protecting oversight” (p. 466). This is an example of a weak test of constitutionality. When justices use a weak test, they approach the case assuming that the law is constitutional unless the challengers make a convincing case to the contrary.