Commentary on Geduldig v. Aiello

Abstract

This chapter of FEMINIST JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT (Linda Berger, Bridget Crawford & Kathy Stanchi, eds. 2016) provides commentary on Lucinda Finley’s rewritten majority opinion in Geduldig v. Aiello, 417 U.S. 484 (1974). This commentary chapter complements the rewritten opinion, providing background material, analysis of the feminist judgment, and reflections on the implications of the feminist judgment for what the law of sex equality could have been. In Geduldig, the United States Supreme Court infamously held that pregnancy discrimination is not sex discrimination under the Equal Protection Clause of the Fourteenth Amendment. The Geduldig decision upheld a California state disability insurance program that denied benefits for pregnancy-related disability, while granting benefits for virtually every other disabling event ranging from prostatectomies to cosmetic surgery. Despite sustained criticism, the Geduldig decision has never been explicitly overruled and continues to constrain women’s access to substantive equality and reproductive liberty. Lucinda Finley’s feminist judgment responds to the faulty formalist logic of the original opinion in several important, distinctively feminist ways. Finley’s feminist judgment reaches beyond the formal appearance of justice and seeks substantive fairness for women in the public sphere. The landscape of sex equality law would look dramatically different if the Court had adopted Lucinda Finley’s feminist judgment—a tantalizing possibility since the intellectual foundations for this feminist judgment existed at the time.