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Equal Protection and Sex Classification in the Courts

The Supreme Court’s nine justices were unanimous in Reed v. Reed (1971). Rarely has unanimity prevailed since in sex discrimination cases, just the reverse. After flirting with the suspect classification standard in Frontiero v. Richardson (1973), the justices heard many cases over the next decade. Throughout, they disagreed about what standards to use, how broadly to define the issues, and whether specific laws favored men or women. The membership changed only slightly: Justice Douglas resigned and was replaced by Justice Stevens in 1975; and Justice O’Connor replaced Justice Stewart in 1982. The first woman justice took part only in cases argued after 1982. Out of this litigation, the Supreme Court set forth at least five standards to guide lawmakers in drawing up legislation that might treat men and women differently, that is, that classifies by sex:

1. Old stereotypes are dead. There was most agreement among justices when they ruled that laws based on the traditional assumptions of separate spheres enshrined in the Bradwell case are no longer rational under the Fourteenth Amendment. Two 1975 8-to-1 decisions made this clear. Absolute exemptions from jury duty for women based on their domestic duties were struck down in Taylor v. Louisiana (1975). The Supreme Court decided that the growing numbers of women, especially married women, in the labor force had “put to rest the suggestion that all women should be exempt from jury service based solely on their sex and the presumed role in the home” (p. 535).