Sexual Equality and the Burger Court

Abstract

N THE FIRST eight years of Warren Burger's Chief Justiceship, the United States Supreme Court gained a reputation as a friend of women's rights. The justices not only resisted attempts to weaken laws prohibiting sex discrimination,1 but departed from long-established precedent to strike down laws requiring it. In 1971, in Reed v. Reed,2 the Court, for the first time, read the Equal Protection Clause of the Fourteenth Amendment to invalidate such a law. Two terms later, in Frontiero v. Richardson,3 the Court came tantalizingly close to declaring sex an inherently suspect classification. Between 1971 and 1976, the Constitution was held to prohibit an automatic preference for males as estate administrators,4 mandatory maternity leaves,5 and discrimination against pregnant women in unemployment insurance,6 to entitle women military personnel to equal dependency benefits,7 to give women workers equal Social Security protection for their survivors,8 and to require that a state set the same age of majority for both sexes.9 Several of these decisions have had direct, profound impact on women's lives. And the decision which has undoubtedly had the greatest impact is Roe v. Wade,r0 in which the Court included a limited right to abortion within the privacy protected by the Constitution. Not only has the Court abandoned the almost josephic aversion to women' evinced by earlier cases, but this new receptivity to feminist claims contrasted sharply with the Court's refusal to enlarge,12 and efforts to constrain,13 the judicial arena, its cautious approach to racial discrimination,'4 and its reluctance to recognize new fundamental rights15 or suspect classifications.16 Women may be the only group to have fared better before the Burger Court than before the Warren Court. With two sweeps of the pen, the Court has negated its reputation as a feminist sympathizer. The first sweep was General Electric Co. v. Gilbert,l7 in December