The Court and Gender

By Joyce L. Broussard, Ph.D, Professor of History, California State University, Northridge
Norma McCorvey, "Jane Roe" of Roe v.Wade on left.

Much of American history is the story of women struggling to gain full equality and/or equity with males in law and in life. Women are not mentioned in the U. S. Constitution, and until 1920 woman were not allowed to vote in national elections. The Fourteenth and Fifteenth Amendments to the Constitution protected voting for African-American males as U. S. citizens but not for female citizens, white or black. For the first 150 years of U. S. history, women were treated in law and by the Supreme Court as inferior to men and as so fundamentally different from men that they required protection in the workplace and the family.

During the first century of the nation's history married women were legally viewed as non-persons in regard to property and the law. They were thought of as little more than wards of their husbands, fathers, brothers, and adult sons. They needed the consent of their husbands to sue in courts of law. They could not easily obtain divorces, and when they tried they had to demonstrate in petitions to the court or the state legislature that their husbands had abandoned them or had committed open adultery. Neither physical abuse nor mental torment nor the habitual drunkenness of husbands constituted grounds for divorce in most states until the end of the nineteenth century. It was not until the 1880s that state courts began to allow mothers custody of their children after divorce, and only a handful of agencies existed in the United States prior to the 1950s offering shelter to abused women.

Using contraceptive devices to avoid pregnancy was against the law in many states until the 1960s, as was obtaining an abortion to end a pregnancy (1973). Until recently, women were routinely excluded from professions and from politics. Although women now serve on the Supreme Court, no woman has ever been elected president or even vice president. Working women have always earned wages substantially less than men. Today, it is estimated by the Bureau of Labor Statistics that the majority of women working full time earn 76 cents for every dollar earned by men doing comparable work. American women have not inherited property on equal terms with their male brothers for most of American history; nor were they allowed to act as attorneys-at-law in representing themselves, other women, or anyone for that matter until late in the 19th century.

In the struggle to obtain equality with males, American women waged the battle at all levels of American society and in every legal and political arena. They joined together to form organizations to fight for equality in state and federal laws, and they challenged discrimination in cases argued before the Supreme Court both individually and as members of reform groups. It was not until the middle of the 20th century, however, that they began to win some of these cases. In most of the earlier battles women either lost the fight before the Courts or else they won so-called false victories--ones that actually reinforced prevailing ideas about female inferiority relative to males.

Most of the "gender equality" cases waged before the Supreme Court fall into eight general categories: Family and Marriage (divorce, alimony, child custody, adoption, dower rights, etc.); Discrimination in Work or Employment (equal pay, pregnancy in the workplace, insurance and benefits, and etc); Civic and Social Rights (voting, jury service, military service, gay rights etc.); Reproduction and Privacy Rights (contraceptives and abortion); Sexual Harassment and Violence (including criminal justice); Education (single-sex schools, Title IX disputes, teaching sexuality); Morality and Ethics (pornography, polygamy, prostitution, and etc.); and Other Gender Issues (sexual orientation, etc.). What follows is a brief introduction to the key issues in each category, highlighted by the experiences of the real people who brought their cases to the Court seeking justice. (See Christopher A. Anzalone, ed., Supreme Court Cases on Gender and Sexuality Equality, 1781-2001 (2002) for abstracts of Court opinions.)

Poster distributed by Planned Parenthood

Family, Marriage, and Gender Differences

In 1836, a white, male slaveholder living in Maryland appealed to the Supreme Court for the return of a free African-American woman, Sarah Ann Allan, along with her two children, who were living in Washington, D. C. (Wallingsford v. Allan, 1836) The appellant Wallingsford had given Allan to his estranged wife as part of his court-ordered alimony. Mrs. Wallingsford, who moved to Washington D. C., subsequently freed Allan. The husband claimed title to Allan and her two children, who were born after she was given to Mrs. Wallingsford, under the laws of coverture. Although legally separated the Wallingsfords had never legally divorced. Mr. Wallingford claimed that his wife had no right to free Allan or to dispose of any property she held without his consent. In his mind, because married women were legally subservient to husbands in matters of property, Sarah Ann Allan's manumission (freedom) was not allowed because he had not agreed to it.

The Supreme Court decided against Mr.Wallingsford, holding that although a married woman could not dispose of property without the consent of her husband, fairness and equity favored the right of the married woman in this case. The Court held that when husbands agree to give property to their wives in settlement of court-ordered alimony, it is only fair that these married women be able to use such property for their own needs. Sarah Ann Allan and her children remained free. The laws of coverture were upheld but modified by considerations of equity for women. The issue, however, was not about a black woman whose freedom was at risk; the issue was about the right of a married white woman to do with her slaves as she pleased.

Many of the other cases about women heard by the Supreme Court prior to 1870 involved the dower, or inheritance, rights of widows. Most states followed the English common law in allowing married women (feme coverts) to claim up to one third of their husband's property at his death. No creditors could touch this so-called widow's dower. State laws chipped away at these dower rights, limiting them to the natural life of the widow. In Stelle v. Carroll (1838) and Mayburry v. Brien (1848), the Supreme Court held that the claims of creditors and heirs trumped dower rights. Beginning in the 1840s, moreover, states began allowing women to sign away their dower rights (prior to the death of their husbands) as collateral for loans or to pay their husband's debts.

Most states eventually passed married women's property laws that enabled married women to control property separate from the control of their husbands, and the Supreme Court held such laws valid in cases argued late into the 20th century. These laws initially were designed to shield husbands from creditors by allowing them to deed property claimed by creditors to their wives. In this way, husbands could keep family estates in the family because creditors could not seize property owned separately by wives for debts contracted by the husbands. In the long run, such laws greatly empowered married women as independent persons even though they were in most other ways legally dependent on their husbands.

The landmark case in promoting gender equality in the family came with Reed v. Reed, decided in 1971 by a vote of 7 to 0 (two seats were vacant). In Reed the Court ruled that an Idaho law giving preference to men over women as administrators of estates (usually the estates of dead husbands) violated the Equal Protection Clause of the Fourteenth Amendment. Using this opinion as a precedent, the Court actively struck down numerous state laws in a range of areas over the next quarter of a century that discriminated on the basis of gender. For the first time in American history, the Court held that state laws discriminating strictly on the basis of sex were "suspect" of being unreasonable and also arbitrary.

Associate Justice Thurgood Marshall captured the sentiment of the times about the wrongheaded nature of laws that discriminated against women in blunt words written in a concurring opinion in 1973. Such laws, he argued, were rooted in a "...romantic paternalism, which in practical effects put women not on a pedestal, but in a cage ... relegating the entire class of females to inferior status...." His words struck down armed service regulations that made it harder for women in the military to obtain resources for their children compared to men (Frontiero v. Richardson, 1973),

In the years between 1836 and 2005, thousands of women sued in local, state, and federal courts in cases of child custody, alimony, separate estates, the eligibility of divorced wives for survivor benefits, and the rights of children born out of wedlock. A handful of these cases made it to the Supreme Court. Some became landmark cases that changed the status of women legally speaking.

In retrospect, it is important to remember that Wallingsford v. Allen was not a victory for the equality of women in the eyes of the Court. When the Court ruled for Sarah Ann Allen, it did so out of a sense of fairness and equity for a married woman (Mrs. Wallingsford) who was judged to be naturally vulnerable and relatively helpless because of her sex. Allowing married women to use their court-ordered alimony as they wished provided them with a measure of independence, but it was not done with this in mind. For the Court, all married women deserved fair treatment and justice because of their vulnerability as women. It was a question of equity (fairness) not equality. And this issue of equality versus equity, or whether women should be treated as equal to men or as different from men, has not been settled even to this day.

For a lesson dealing specifically with the landmark case, Reed v. Reed, click here.

The new woman--wash day circa 1901.

Discrimination in Work, Employment, Careers, and Professions

Myra Bradwell passed the Illinois bar exam in 1869 and applied for her license to practice law. She was well known in the Illinois legal circles because of her work as the editor and publisher of the Chicago Legal News. Her husband was also a prominent lawyer. Not to her surprise but much to her dismay, the Illinois Supreme Court turned down her request to practice law because she was a woman and a wife. Bradwell immediately appealed to the U. S. Supreme Court, arguing that the state's denial of a license violated the Privileges and Immunity Clause of the recently passed Fourteenth Amendment. The Court rejected her appeal on April 15, 1873, holding that the Privileges and Immunities Clause did not guarantee citizens the right to practice a profession. Moreover, and perhaps most importantly in the long run, the concurring opinion of Associate Justice Joseph P. Bradley used overtly sexist language in his justification for the ruling. (see Bradwell v. State of Illinois, 1872)

Upholding the Common Law tradition of the femme covert, Bradley found that Bradwell, as a married woman, was not competent to make contracts or do other legal work for her clients because of her natural, legal, and socially defined dependency on her husband in all matters. In other words, because Mrs. Bradwell was legally impaired as a married woman, her clients could not be well served. Bradley went further in saying that married women did society a disservice by having careers: "The harmony, not to say identity, of interests and views which belong or should belong to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband." As if to clinch his point, he then added these words: " The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator."

In this case the U. S. Supreme Court admitted that women were "citizens" under the Fourteenth Amendment, but not citizens equal to men and certainly not full participants in the lager society. In ruling against Bradwell, the Court placed severe limitations on the Privileges Clause of the Fourteenth Amendment (and it has not been used much since in the opinions of the Court). In the 100 years following Bradwell, the Court upheld state bans on women for such actions as tending bars (Goesaert v. Cleary, 1948) and serving on juries (Hoyt v. Florida, 1961), among other exclusions. It was not until the 1970s that the Court began to use the Equal Protection Clause of the Fourteenth Amendment to challenge state laws that discriminated against women in the workplace and employment in general.

A major part of the reason the Court began to change had to do with new federal laws that supported gender equality. Backed by the Equal Pay Act passed by Congress in 1963 and Title VII of the Civil Rights Act of 1964, the Court held in 1971 that employers could not discriminate in hiring against women who had preschool children: Phillips v. Martin Marietta Corporation, 1971. Other rulings followed in rapid order, but not all of them favored equality for women. In Los Angeles v. Manhart (1978), the Court disallowed requirements making women pay larger contributions to employee pension funds than men based on the longer life expectancy of women. In California Federal Savings and Loan Association v. Guerra (1987), the Court upheld a California law that required employers to grant unpaid maternity leave to pregnant women. In 1977, the Court allowed states to hire only male guards in prisons where sex offenders posed a threat to women (Dothard v. Rawlinson, 1977). On the other hand, in Wards Cove Packing Co. Inc. v. Atonio (1989), the Court held that employees have to prove that job requirements that clearly discriminate against women are not essential to doing business.

In recent years, the Supreme Court has accepted few if any of the job discrimination suits filed by women in federal courts. This means that the rulings of the lower courts have been allowed to stand. The issues are very complicated, and there is division even among women activists in many of these cases. Is it discrimination to allow preferential treatment for pregnant women? If an employer refuses to allow a pregnant woman lighter duty, is this gender discrimination? What about pregnant women lifting heavy weights, working with chemicals, or caring for patients with HIV? Is making exceptions for pregnant women "preferential treatment" or so-called "Reverse Discrimination?" Does protective treatment for women undermine the case for gender equality? To date, the U. S. Supreme Court has let stand a variety of rulings by federal appeals court that seem contradictory on these issues.

Civic and Social Rights

Virginia Minor wanted to vote as an adult, married woman in 1872 in federal and state elections. She believed that it was her right as a citizen and person. But she lived in Missouri, a state that did not allow women to vote. In addition, Missouri law forbade married women from suing in a court of law without the permission of their husbands. When Virginia Minor was refused permission to register to vote, she sued the local registrar, Reese Happersett, as a co-plaintiff with her husband, Francis Minor (Minor v. Happersett, 1874). Both Minors were active members of the National American Woman Suffrage Association (NAWAS), a newly formed organization determined to use the Privileges and Immunities Clause of the Fourteenth Amendment to wage the battle for women's suffrage in the nation's courts.

After losing their appeal to the Missouri Supreme Court, the case of Minor v. Happersett was heard by the U. S. Supreme Court in 1874. The Court unanimously dismissed Minor's argument that disfranchisement had made her a "half-way citizen." Speaking for the Court, Chief Justice Morrison Waite said that women were both citizens and persons in the eyes of the Constitution, but that as women they enjoyed a special status that did not include the right to vote. The Court viewed women to be persons and citizens in the same legal sense that children are persons and citizens; and the Court argued that it was not the intention of the framers of the federal or state constitutions to grant suffrage to women when it conferred citizenship to them.

The idea that women were citizens but with a difference, and that their inability to vote did not deprive them of their rights as citizens, meant that the Privileges and Immunity Clause did not apply to them. The Courts, therefore, could not say that women had a constitutional right to vote. To eliminate or abolish this special category of citizenship-without-voting-rights for women would require a constitutional amendment. For the next 50 years, American suffragists struggled mightily to convince the nation's male voters to amend the U. S. Constitution to allow female citizens to vote. This struggle was finally won with the ratification of the Ninteenth Amendment in 1920.

Although the battle for voting rights shifted from the courts to Congress and the political arena, numerous other cases were brought to the Supreme Court in the years between 1874 and the present. Challenges were presented to an array of alleged discriminatory laws and actions that routinely eliminated women from juries (Classer v. United States, 1942), exempted them from registration and service in the armed services as combat soldiers (Rostker v. Goldberg, 1981), and denied women membership in private business clubs and private associations (Board of Directors of Rotary International v. Rotary Club, 1987).

In the 1990s, the Court began to hear cases of gender discrimination that involved gays and lesbians. One important case was about the rights of gays and lesbians to march in public parades (Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 1995); another case was brought to the Court by a homosexual Boy Scout leader who was thrown out of the Scouts because of his homosexuality (Boy Scouts of America v. Dale, 2000). In Hurley, the Court unanimously held that to require parade organizers to permit the IGLIB to march as a group would violate the parade organizers' First Amendment right to a free speech. In Boy Scouts, the Court ruled 5 to 4 that forcing the Boy Scouts to include a homosexual as a member and leader would significantly impair the Scouts' First Amendment right to "protected association."

In these cases, the Court weighed the citizenship rights of homosexuals (male and females) and straight women against the issues of free speech and protected association rights. For the most part, the Court has been reluctant to treat homosexuals as citizens with equal rights to straight men and women. It has tended to uphold the idea that states and the federal government can discriminate against persons on the basis of their sex or gender if a compelling government interest was achieved or when in conflict with fundamental First Amendment rights. Winning the right to vote for women, in other words, has not settled the issue of gender discrimination and citizenship that will continue to engage the Court in the foreseeable future.

For a lesson dealing specifically with the landmark case, Minor v. Happersett, click here.

Reproduction and Privacy Rights

No opinion of the Supreme Court has caused greater controversy in recent years than the decision in Roe v. Wade, 1973. This ruling overturned a Texas law, which denied women the right to abort an unborn fetus. Reaction to the decision spawned a national Right to Life movement, bombings and murders at abortion clinics, the refusal of Congress to confirm a strong opponent of abortion (Robert Bork) to membership on the Supreme Court, pledges by presidential candidates of the Republican Party to appoint judges un- favorable to Roe, the drive for a constitutional amendment prohibiting abortion, and banning federal and state financing of abortions. Pro-choice political activists (National Organization for Women) have squared off against the Roman Catholic Church and fundamentalist Protestants in making abortion a political "litmus test" for supporting candidates for political office and judicial appointments.

Norma McCorvey became pregnant as a teenager and could not afford to travel from Texas to a more liberal state to have a legal abortion. She gave birth to an unwanted child, whom she gave up for adoption. In the process of trying to obtain a safe and hygienic abortion, McCorvey agreed to be the plaintiff in a suit challenging the Texas law, suing Henry Wade, District Attorney of Dallas County, Texas. The case was filed under the name of Jane Roe to ensure her privacy. (McCovey later revealed her name and became an outspoken opponent of abortion). Her personal physician, Dr. James Hubert, joined her in the case.

By the time the case reached the U. S. Supreme Court, various organizations and individuals joined in support of, or in opposition to, the Texas law, which made it a crime for a woman to have an abortion and for a doctor to assist in an abortion. Among the supporters of the Texas law were six state attorney generals and several right-to-life associations--principally Roman Catholic-sponsored advocacy groups. Those who joined the case in support of abortion included the American College of Obstetricians and Gynecologists, the Planned Parenthood Federation of America, the American Association of University Women, and the National Organization for Women.

The Court decided 7 to 2 in favor of a woman's constitutional right to abortion. This right, however, was a qualified one. Writing for the Court, Justice Harry A. Blackmun, established a controversial "trimester analysis," stating that women had an absolute right to abortion during the first three months of pregnancy. States could regulate abortion during the second three months when abortion might threaten the health and safety of the woman's life. The Court allowed the government to ban abortion completely during the final trimester of pregnancy, when the fetus was capable of living on its own as a "viable" human being. Even in the final trimester, however, the state must allow abortions to save a woman's life.

Blackmun based his opinion on a woman's right to privacy, using a precedent established in an earlier case (Grisswold v. Connecticut, 1965). In Grisswold, the Court held that state laws restricting the right to use contraceptives violated a person's constitutional right to privacy. For the Court, the decision to seek an abortion was a personal matter of great intimacy between a woman and her doctor, and government had no right to intervene in such personal choices.

At the heart of the abortion issue is the question of when life begins. For Blackmun and the majority of the Court, there is no clear answer to this question--no answer, that is, to which a consensus exists among theologians, scientists, doctors, philosophers, or judges. What the Court can say with certainty, according to Blackmun, is that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." Therefore, states cannot ban abortions until the fetus reaches the stage of "right to viability."

By grounding Roe in the right-to-privacy precedent, the Court avoided saying that abortion laws discriminated against women on the basis of their gender. In other words, women were not granted the right to have an abortion as a matter of reproductive freedom or gender equality. They were granted the right to an abortion as a matter of privacy. And when the Court talks about abortion laws violating the right to privacy, it means the privacy that exists between a doctor (usually male) and a female patient. By not seeing the issue as one of gender discrimination--in the sense that abortion laws affect women fundamentally and not men, the Court opened the door to challenges based on the belief that life begins at the moment of conception.

In the years since Roe, the Supreme Court has seriously restricted funding for abortions and come close to overturning Roe on several occasions. In Maher v. Roe (1977), the Court upheld by a 6 to 3 majority a Connecticut law that disallowed the use of Medicaid funds for most abortions. This was followed in 1981 by a ruling in which the Court voted 5 to 4 to bar all federal funding for abortions except in the case of rape, incest, or to protect the life of the mother. In Webster v. Reproductive Health Services (1989), the Court upheld by a 5 to 4 vote a Missouri law that prohibited the use of public facilities or public workers to perform abortions.

In Planned Parenthood v. Casey (1992), four Justices (Rehnquist, White, Scalia, and Thomas) voted to overturn Roe, but Justice Sandra Day O'Connor joined with Justices Kennedy, Souter, Blackmun, and Stevens to reaffirm the "essential holding" of Roe. This is where the matter stands today. Most Court observers believe, however, that President George W. Bush's appointment of two new justices to fill the vacancies caused by the resignation of Justice Sandra Day O'Connor and the death of Chief Justice William Rehnquist may yet result in a Court willing to overturn Roe.

Sexual Harassment and Violence

In the spring of 1997, the Supreme Court reversed an order by an Arkansas federal judge postponing a sexual harassment suit by Paula Jones against then-President Bill Clinton. The Arkansas judge did not rule on the merits of the case but merely stayed (postponed) the suit until Clinton was no longer a sitting president. Jones eventually dropped the suit when a third party paid her $900,000 to settle out of court. (Clinton v. Jones, 1997)

A decade earlier the Supreme Court had ruled unanimously in Meritor Savings Bank v. Vinson (1987) that sexual misconduct at work by a supervisor towards a female employee violated federal law against sex discrimination in the workplace. The Court said that sexual harassment occurs whenever an employer ties sexual favors to continued employment. In later cases, the Court held that evidence of psychological damage was not required to prove sexual harassment (Harris v. Forklift Systems, 1993). In two subsequent cases, the Court found that an employer is liable when a supervisor sexually harasses an employee even when (1) no adverse job action occurs or (2) when the employer was not otherwise at fault (Burlington Industries v. Ellerth and Farragher v. the City of Boca Raton, 1998). According to these rulings, employers are responsible for making sure that sexual harassment does not happen on the job.

The Court based its decisions in the above cases not on the Constitution or the Bill of Rights but on Title VII of the Civil Rights Act of 1964. This statute prohibits employers from hiring, firing, or discriminating in the workplace on the basis of race, color, religion, sex, or national origin. The statute created an Equal Opportunity Employment Commission (EEOC), which is charged with investigating complaints. The law defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or other physical conduct of a sexual nature." The Supreme Court expanded this definition to mean humiliating or degrading conduct of a sexual nature that results in a hostile work environment regardless of any adverse job consequences to the victim.

When Joseph Oncale sued his employer, Sundowner Offshore Services in 1998 for tolerating a hostile work environment on an offshore oil platform in the Gulf of Mexico, the Court was faced with the issue of same-sex harassment (Oncale v. Sundowner Offshore Services, 1998). Oncale claimed that he had been subject to "sex-related, humiliating actions" including threats of rape, by other male workers. The company did nothing, according to Oncale, when he complained. The Court unanimously ruled that Oncale could sue under Title VII, reversing a lower court decision holding that Title VII did not apply to same-sex cases. With the Supreme Court's decision, dozens of same-sex harassment suits were subsequently filed in local, state, and federal courts all over the nation.

When we turn our attention from sexual harassment to the victims of violence, spousal assault, rape, and assault and battery, women have not fared as well in Court rulings. For much of the past 100 years, women have had to prove when alleging rape that they had not consented to forced sex. They also had to convince juries and judges that they had actually resisted by fighting off the alleged rapists. Evidence of non-resistance or suggestions that the female victim had sent out misleading signals typically allowed the male rapist to escape punishment. Few states prior to 1960 considered forced sex by husbands to be rape. Until so-called "rape shield" laws were passed in the 1970s, the past history of rape victims could be used in court to discredit a victim's credibility.

It was because of the failure of states to adequately deal with the crime of rape that Congress passed and President Bill Clinton signed into law in 1994 the Violence Against Women Act (VAWA). This statue asserted that all persons "shall have the right to be free from crimes of violence motivated by gender." It authorized federal persecution of sex-motivated violence, and it established a civil remedy for victims of "gender-motivated" crimes. This means that perpetuators of rape and assault against women can be prosecuted by the federal government, sent to jail if convicted, and can be made to pay for physical and emotional damages to their victims.

Congress justified passage of the Violence Against Women Act by arguing that remedy fell under the Commerce Clause of the Constitution because the extent of rape and the assault of women affected not only the individuals but also the nation's economy. It was estimated that the 400,000 women raped each year in the United States cost the nation 3 billion dollars annually. Moreover, the 500,000 high school girls who would be raped before they graduated, and the 125,000 college women who would be assaulted each year, was reason enough for Congress to act in the opinion of the statute's supporters.

In the fall of 1994, two male college classmates allegedly raped Christy Brzonkala within weeks of her enrolling at the Virginia Polytechnic Institute. When the alleged attackers were let off with minor punishment by the school, Brzonkala sued her alleged attackers as well as Virginia Polytechnic under the Violence Against Women Act. The Supreme Court, in one of the few cases it heard regarding violence against women, ruled against Brzonkala in 1998. The Court held that VAWA was unconstitutional because it exceeded what Congress is empowered to do under the Commerce Clause (Brzonkala v. Virginia Polytechnic Institute, 2000).

The Court's 5 to 4 opinion (Justices William H. Rehnquist, Sandra Day O'Connor, Anthony M. M. Kennedy, Antonin Scalia, and Clarence Thomas) held that Congress had erred in using its Commerce powers to make violence against women a federal crime. The proper remedy, according to the Court's majority, rested with the states not the federal government. This decision to limit the right of victims to sue for damages was only the second time since the 1930s that the Supreme Court found Congress to have exceeded its Commerce Clause authority. Dissenters on the Court (Justices John Paul Stevens, Stephen G. Breyer, Ruth Bader Ginsberg, and David H. Souter) argued that the VAWA was similar to the Civil Rights Act of 1964, which made violence against African-Americans a federal crime. This position echoed the sentiments of the statute's supporters who argued that sex bias took annually a greater economic toll than racial bias.

Education

Joe Hogan, a registered nurse in Mississippi, tried in 1979 to enroll in the School of Nursing at the Mississippi University for Women. He wanted to earn a baccalaureate degree in nursing to further his career. The Mississippi Legislature had created MUW in 1887 during the Jim Crow era of American History specifically for the "Education of White Girls in the State of Mississippi." Hogan, who lived in Columbus, Mississippi, where the school was located, was denied admission solely because of his sex. He sued MUW in the United States District Court, claiming that MUV's admissions policy violated the Equal Protection Clause of the Fourteenth Amendment. In the Court's opinion, MUV's single-sex school provided "the greatest practical range of educational opportunities for its female student population." The Court further noted that the policy was reasonable and also consistent with "respected" educational theory about the benefits of single-sex education for women. (Mississippi University for Women v. Hogan, 1982)

Mr. Hogan then appealed to the Court of Appeals for the Fifth Circuit, which reversed the lower court's ruling. The State of Mississippi sent the case to the U. S. Supreme Court, which held in Hogan's favor on March 22, 1982, by a vote of 5 to 4, with Justice Sandra Day O'Connor writing for the Court. In the Court's opinion the state's single-sex admissions policy did not actually compensate for past harm to women, as the state argued, but simply reinforced "the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy." There was no compelling evidence presented by the state, according to the Court, that allowing men to attend classes with women adversely affected the education of female students. Justice Lewis F. Powell, writing in dissent, argued that the Court's ruling would ban all state-supported colleges for women and lead to their extinction, which it did. (Mississippi University for Women v. Hogan, 1982)

Mr. Hogan's victory did not deal directly with the issue of the all-male, state-supported colleges that excluded women. This issue hit the front burner in the mid 1990s when two women applicants sued for admission to an all-male, state-supported military college.. Both the Virginia Military Institute (VMI) in Lexington, Virginia, and the Citadel, in Charleston, South Carolina, defended their admissions policies on the grounds that allowing women cadets into their programs would destroy their special form of education. VMI excluded women on the grounds that its "adversative" training, designed to break down students and then rebuild them as men and soldiers, was not appropriate to women. According to VMI, women were psychologically and physically different from men; they would not fit into programs designed to foster self-reliance in men, which was the hallmark of VMI. (United States v. Virginia, 1996)

The VMI program verbally abused freshmen students, called "rats," in an intensive seven months of hazing that treated all students equally by treating them all badly. Those who survived then stood tall and proud; they enjoyed a new sense of self-respect and self-discipline. Such qualities enabled them to endure pressure under fire and to lead as men, officers, and citizens. Women, it was argued, simply were not emotionally or physically capable of standing up to this kind of rigorous abuse and training.

VMI pointed out, moreover, that the adversative method was especially designed for rowdy young men, and that its goals of transforming such boys into men did not apply to women because young girls were not as rowdy as young boys by nature. In other words, women might survive the hazing, but the program would not benefit them much. A program aimed at transforming men was not needed by women. It would do them no special good and might do them substantial harm.

Virginia further argued, although the Citadel did not, that it had established a separate program at a sister college (Mary Baldwin) better suited to developing a woman's strength based on building cooperative relationships: the Virginia Women's Leadership Institute. Running the "rat track" at VMI, for example, humiliated boys while running the rat track at VWLI allowed women to succeed by forcing them to work cooperatively as teams, thus building up their self-confidence. What worked for women did not work for men.

VMI also argued that admitting women would fundamentally change its educational system. The students could not be treated equally as "rats." VMI would have to provide women with privacy. And it would have to devote time and attention to gender relationships. Sociologist David Riesman argued for Virginia by asserting that whereas young women need to learn in an environment that builds self-confidence, young men are typically overconfident, and thus need a different learning environment. To do this at VMI would change the fundamental character of the institution. Feminist historian, Elizabeth Fox-Genovese, praised the benefits to women derived from single-sex education, based on the idea that women were fundamentally different from men with different needs.

The Supreme Court ordered the sex integration of VMI and the Citadel by a vote of 7 to 1 on June 26, 1996. Justice Anthony Scalia stood in dissent. Justice Clarence Thomas excused himself from the case because his son attended VMI at the time. Justice Ruth Ginsburg wrote the majority opinion, holding that VMI's exclusion policy violated the Equal Protection Clause of the Fourteenth Amendment; she also said quite forcefully that the separate-but-equal program at Mary Baldwin was distinctly inferior to VMI's academic program in the quality of its faculty and physical facilities. Moreover, the so-called "Women's Leadership Institute" because it was so fundamentally different from VMI's program, deprived women, in any case, of the opportunity to excel in VMI's higher quality education.

For Ginsburg, the fundamental issue was that women who wanted the kind of education offered by VMI were excluded from getting it simply because they were women. She wrote that while the "inherent differences between men and women" were a "cause for celebration...," they were not, however, reason to justify the "denigration of the members of either sex or for artificial constraints on an individual's opportunity." She pointed out that the nation's military academies (West Point and Annapolis) had integrated racially and sexually with good results.

Justice Scalia wrote a scathing dissent that quoted from a VMI's freshman orientation booklet. The booklet listed the characteristics of a "gentleman," which simply did not fit, in his mind with the education of women. According to the booklet, a gentleman must never discuss "the merits or demerits of a lady;" "hail a lady from a club window," or "lay a finger on a lady." To destroy such high standards of conduct would be a disservice to the nation, and he doubted in closing that "any of us, women included, will be better for its destruction." Chief Justice William Rehnquist, while concurring with the Court, pointed out that he probably would have voted to allow single-sex education if the program at Mary Baldwin had been qualitatively equal to the program at VMI.

VMI decided to open its doors to women rather than become a private institution. It did not change its physical or academic requirements. In 1997, VMI admitted 30 women in a class of 460 students. Twenty-three of these women survived the hazing as rats. VMI graduated its first two female graduates, who had transferred to VMI as sophomores, in 1999.

Much of the impetus for the Court's stand on sexual discrimination in education stemmed from the passage of Title IX of the Education Amendment Act in 1972. This legislation prohibits discrimination on the basis of sex in all federally funded educational programs or activities. The law attempted to do for gender equality what the Civil Rights Act of 1964 did for racial equality in programs funded with federal monies. It banned sexual discrimination against pregnant women, wives, and parents of children as well as separate admission policies and financial standards for the two sexes.

Many of the cases heard by the Supreme Court in the first years after passage of Title IX found the Court placing limits on the meaning of the new federal statute. The Court limited, for example, in Grove City College v. Bell (1984) application of the law to those programs that directly benefited from federal funding. The institution in which the discrimination occurred would not be held accountable in the main, but rather only the individual programs that received federal funds would be affected. In response, Congress passed the Civil Rights Restoration Act of 1988, which again prohibited discrimination on the basis of race, sex, disability, and age. President Ronald Reagan vetoed the bill but Congress overrode his veto. It was in this climate that the Court acted in the VMI case.

Morality and Ethics

In 1940, two young female prostitutes drove by auto from Grand Island, Nebraska, to Salt Lake City, Utah. They had traveled with the proprietors of the brothel in which they worked in Grand Island, a Mr. and Mrs. Mortensen. The trip was, in the testimony of the two girls, a vacation to visit Mrs. Mortensen's parents. They stopped at Yellowstone National Park along the way. Upon their return to Grand Island, the Mortensens were arrested and charged with transporting the young women via "interstate commerce ... for the purpose of prostitution and debauchery, and with the intent to induce and compel the girls to give themselves up to debauchery and to engage in immoral purposes." Charged with violating the Mann Act, the jury found the defendants guilty.

Mr. and Mrs. Mortensen appealed to the Supreme Court, which overturned the conviction on the grounds that the government had not proved that anything immoral went on during the visit to Salt Lake (Mortensen v. United States, 1944). It did not matter, moreover, in the opinion of the Court that the young women had resumed their occupation as prostitutes. For the Court, the Mann Act was not aimed at the regulation of prostitution but at ending the so-called interstate slave traffic in white women. Nothing in the Court's opinion backed away, however, from the denunciation of prostitution as "hostile" to the very idea of family and marriage that its predecessor Court had delivered in 1908 in United States v. Betty.

The issue of prostitution and gender equality is a tricky one. For example, prostitution is a legal, regulated business in Nevada but a crime everywhere else in the nation. For the Supreme Court, it only becomes a federal crime if prostitutes are transported between states. Neither the Court nor federal agencies interfere with how states deal with prostitutes in the enforcement of criminal laws, unless actions by local and state governments abridge the rights of prostitutes, or their customers, as citizens.

It is also a complicated matter because women activists and feminists are somewhat divided in their opinions about prostitution. In recent years, prostitutes have organized as sex workers into lobby groups that have argued for their rights as workers to equal treatment without police harassment. They favor the legalization of prostitution with health standards set by the state. Many feminists have opposed this as making permanent and respectable the male treatment of women as sexual servants. Some female prostitutes argue, however, that laws protecting the rights of prostitutes as workers would apply equally to male and female prostitutes, and thus promote gender equality as well as equity.

Similar to prostitution, the legality of pornography has confronted the Supreme Court with equally thorny questions related to gender equality. In 1986, the U. S. Supreme Court affirmed a decision by a lower federal court that held unconstitutional a law passed by the city of Indianapolis banning pornography (American Booksellers Ass'n v. Hudnut, 1986). The law (MacKinnon-Dworkin Ordinance) was based on the contention that pornography perpetuates inequality and therefore constitutes a form of sex discrimination. For the supporters of the law, pornography is a basic thread in the fabric of male supremacist violence against women. It exists fundamentally in service to male prurient interests, and it is supported by an army of rapists, pimps, and deviants who view women as existing only to be violated by men.

The Court, supported by booksellers, anti-censorship groups, civil libertarians, and "First Amendment feminists," held that anti-pornography laws violate the First Amendment freedoms of speech and press. For many opponents of limitations on pornography, the threat of pornography censorship threatens fundamental American civil liberties and freedoms, opening thereby the door to censorship by the Court in other areas of American life. Some supporters of gender equality hold, moreover, that pornography, like prostitution, if regulated and protected under state supervision, might actually allow women to express themselves in ways (erotically and sexually) that society has deemed inappropriate for women. Both camps continue to do battle on the issues of pornography and prostitution, struggling to obtain federal legislation and mounting cases designed to gain a hearing before the Supreme Court.

Among the handful of cases that have been argued before the Supreme Court regarding gender equality and morality, most in the nineteenth century had to do with polygamy, or the practice of one man having more than one wife. From 1878 to 1896, the U. S. Supreme Court handed down 7 opinions aimed at ending the practice of plural marriages by Mormons in the territory of Utah. The legal question that faced the Supreme Court was rooted in the Morrill Act of 1862, which outlawed polygamy in all territories and states.

Mormons, who controlled the legislative and executive branches of government in Utah, largely ignored the law. Plural marriage had been a central part of Mormon religion and society since Joseph Smith, the founder of the Church of Latter-Day Saints, held it to be based on biblical practice and divine revelation. For Mormons, polygamy was a religious duty essential to the well being of family and society. In hope of showing that polygamy did not demean women, the Utah territorial legislature granted women the right to vote, but not to hold public office. Congress responded by passing a statute in 1882 forbidding a male "polygamist" and any woman "cohabitating with any polygamist..." from voting or holding office in federal territories.

The pivotal case happened in 1878, when George Reynolds, a high Mormon official convicted of bigamy under the Morrill Act, appealed to the Supreme Court. The Court rejected the contention that the Morrill Act violated a citizen's freedom of religion. It held that Congress had the authority and the power to interfere with religious practices in the name of public morality. For the Court, and for most Americans at the time, polygamy was not only immoral, it also threatened democracy because it undermined the traditional family unit and sustained a patriarchal system that enslaved women.

The fact that Mormon women had voted to support polygamy did not affect the firmness of the Court's position (Maynard v. Hill, 1888 and Murphy v. Ramsey, 1885). In 1890, the Supreme Court reaffirmed that polygamy destroyed "the purity of the marriage relation" even as it "debase[d]" men as well as women. (Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 1990; and Davis v. Benson, 1890). These decisions by the Court in 1890 ended for all practical purposes any questions about the legality of polygamy. The Mormon Church officially ended polygamy that same year. As a result, Utah became a state in 1896, granting suffrage to women in its state constitution.

Other Cases of Gender Equality

Late one night in the autumn of 1998, Huston police answered a call about a person brandishing a gun in an apartment complex. Although the claim was false, the police found John Geddes Lawrence and his partner Tyrone Garner, engaged in sexual actions that appeared to violate Texas law. Lawrence and Garner eventually appealed their guilty conviction to the Supreme Court, claming that the Texas law was unconstitutional in that it violated their rights to due process and equal protection. At issue was the constitutionality of laws against sodomy (Lawrence v. Texas, 2003).

At the time of Lawrence, the legal rights of gays and lesbians were very much up in the air. Only four states in the nation still had sodomy laws on the books: Texas, Oklahoma, Kansas, and Missouri. During the 1990s, courts in Hawaii and Alaska upheld the right of gay and lesbian couples to marry, and Vermont, California, and Hawaii had in place domestic partnership laws that offered significant protections for single-sex couples. The Vermont legislature in 2000 passed historic legislation that allowed same-sex couples to enter into "civil unions." These civil unions gave same-sex couples the same benefits that married, opposite-sex couples enjoyed. The Court earlier had invalidated, moreover, in Romer v. Evans (1996) a Colorado amendment to the state constitution that barred state and local officials from offering special protection to homosexuals. In 2003, the Massachusetts Supreme Court held that same-sex couples were entitled to marry as a constitutional right. In February, 2004, the Mayor of San Francisco ordered municipal officials to grant marriage licenses to same-sex couples in defiance of California law. Presently, even as we write, the California legislature has passed a bill now being considered before the California Assembly granting gays and lesbians the right to marry.

On the other hand, in Bowers v. Hardwick, the Court had earlier decided in 1986, by a vote of 5 to 4, that the right to privacy did not cover acts of consensual sex among homosexual couples. Writing for the Court, Justice Byron White claimed that the right to privacy was limited to sexual actions involving "family, marriage, or procreation"--none of which applied to homosexuals. In reaction to court decisions favorable to gay rights, Alaska, Hawaii, and California passed ballot initiatives limiting legal marriage to men and women only. Congress also acted by passing the Defense of Marriage Act in 1996, which permitted states to refuse to recognize other state statutes that might recognize a same-sex marriage. This law produced a rush of state laws that defined marriage as between one man and one woman. President George W. Bush, in 2004, proposed that Congress pass a constitutional amendment banning same-sex marriages.

The Court's opinion in Lawrence overturned Bowers with a vote of 5 to 3, with one Justice (O'Connor) concurring but not joining in the majority opinion to overthrow Bowers. Justice Kennedy wrote the majority opinion. He said that Romer held precedent over Bowers, stating that homosexuals were citizens with the same rights to privacy in matters of sex as all other citizens. For Kennedy, the fundamental issue was not about sex but about the right to be left alone in the privacy of one's home. There has to be a legitimate and reasonable state interest to justify "its intrusion into the personal and private life of the individual...." Justification cannot be based on an "animosity toward the class of persons affected..." especially when no rational government purpose has been identified.

Justices Rehnquist, Scalia, and Thomas wrote in dissent. Scalia said that the Court's overturning of Bowers left open to challenge state laws "against bigamy, same-sex marriages, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity...." He charged that the Court had "signed on to the so-called homosexual agenda," and he saw the Court as having "taken sides in the culture war."

Historian Debran Roland suggests, in her book The Boundaries of Her Body: The Troubling History of Women's Rights in America (2004), that the Court's decision in Lawrence has possibly settled public questions about the rights of single-sex couples to engage privately in sexual choices where procreation is not part of the equation. Lawrence may also strengthen, according to Roland, the privacy claim for women making choices about birth control. By strengthening one's constitutional right to privacy regarding sexual acts, Lawrence establishes a precedent supportive of Roe v. Wade, which is also based on a woman's right to privacy. Nevertheless, as the Court enters into a new phase of its history with two new appointments that will most likely be conservative on matters of abortion and same-sex rights, it is almost certain that these issues will again find their way to the Court's bench for review and contest.

For approaches for teaching The Court and Gender, click here.

Selected Bibliography

Anzalone, Christopher A.,ed. Supreme Court Cases on Gender and Sexual Equality, 1781-2001 (2002)

Basch, Norma. Framing American Divorce: From the Revolutionary Generation to the Victorians (1999)

DuBois, Ellen Carol, ed. Woman Suffrage and Women's Rights (1998)

Evans, Sara. Born for Liberty (1989)

Eskridge, William and Nan Hunter. Sexuality, Gender, and the Law (1997)

Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994)

Grossberg, Michael. Governing the Hearth: Law and the Family in Nineteenth Century America (1985)

Hartog, Hendrik. Man and Wife in America: A History (2000)

Hoff, Joan. Law, Gender, and Injustice: A Legal History of U. S. Women (1991)

Hull, N. E. H., and William James Hoffer and Peter Charles Hoffer, eds. The Abortion Rights Controversy in America: A Legal Reader . (2004)

Irons, Peter. A People's History of the Supreme Court (1999)

Kessler-Harris, Alice. In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-Century America (2001)

Kirber, Linda. No Constitutional Right to Be Ladies: Woman and the Obligations of Citizenship (1998)

Miller, Diane H. Freedom to Differ: The Shaping of Gay and Lesbian Struggle for Civil Rights (1998)

Murdoc, Joyce and Deb Price. Courting Justice: Gay Men and Lesbians v. the Supreme Court (1985)

Norton, Mary Beth. Founding Mothers and Fathers: Gendered Power and the Forming of American Society (1996)

Richardson, Laurel. The Dynamnics of Sex and Gender: A Sociological Perspective (1988)

Rhodes, Deborah. Speaking of Sex: The Denial of Gender Inequality (1997)

Roland, Debran. The Boundaries of Her Body: The Troubling History of Women's Rights in America (2004)

Smith, Christopher, and Christina De Jong and John D. Burrow. The Supreme Court, Crime, and the Ideal of Equal Justice (2003)

Tushnet, Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law (2005)

Woloch, Nancy: Women and the American Experience (1984)