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Pauli Murray: “On the Edge of History”

Many members of President Kennedy’s PCSW, which had been established the same year the Hoyt case was decided (1961), had reason to believe that the Supreme Court, faced with a concerted demand from women, might extend the Equal Protection Clause of the Fourteenth Amendment. Pauli Murray, the attorney who headed a subcommittee on constitutional equality, was especially impressed by the success of civil rights groups. These groups had mounted a special campaign of litigation to push the Supreme Court to develop and apply a strict test of constitutionality in its review of race discrimination. After decades of such litigation, the Supreme Court added a second tier of strict scrutiny especially for racially based laws.7 It called them suspect and would permit them only if the state could show such laws served a compelling state interest. Today, race-discriminatory statutes do not survive this test. Contrast the suspect classification test with the ordinary scrutiny test used for sex classifications: Under ordinary scrutiny, laws that treated people unequally were acceptable if the laws were based on reasonable classifications related to legitimate interests. The PCSW agreed that if the Supreme Court also would change its treatment of sex discrimination and adopt the stricter test, women and men would be equal under the Constitution.