the New York University Law Review Prof. John Johnston, Jr., commented that the
courts are “not certain what constitutes sex discrimination, how virulent this
form of discrimination is or how it should be analyzed in terms of due process
and equal protection.” My own appraisal, expressed in an article in The Supreme
Court Review, 1975, is that the Supreme Court had taken a few remarkable steps
in a new direction, but it had shied away from doctrinal development and had left
open avenues of retreat.
The first break from the “anything goes” pattern was Reed v. Reed, 404 U.S.
71, in which the Supreme Court declared unconstitutional an Idaho law provid-
ing that as between persons “equally entitled” to administer a decedent’s estate,
“males must be preferred to females.” A year and a half later, in Frontiero v.
Richardson, 411 U.S. 677 (1973), married women in the uniformed services were
held entitled to the same fringe benefits as married men. Under the law that the
Supreme Court declared unconstitutional, married men automatically received a
housing allowance and medical care for their wives, while married women re-
ceived these benefits only if they supplied all their own support and more than
half of their husband’s.
In 1974 the Supreme Court retrenched, first in Kahn v. Shevin, 416 U.S. 351,
a decision upholding exclusion of widowers from the Florida statute that grants
widows a real property tax exemption. This exemption saved the real-property-
owning widow the grand sum of fifteen dollars annually. A benign favor for (wid-
owed) women? The Supreme Court said the fifteen dollar saving compensated
women for past economic disadvantage. Florida gave three classes this little tax
break: the blind, the totally and permanently disabled, and widows.
Later in 1974 the Court returned a decision impossible to rationalize as a fa-
vor to women. In Geduldig v. Aiello, 417 U.S. 484, the Court upheld a California
statute that excluded women disabled by pregnancy from a workers’ income pro-
tection disability insurance plan. On the other hand, the Supreme Court has held
that school teachers may not be dismissed or placed on involuntary leave arbi-
trarily at a fixed stage in pregnancy (414 U.S. 632 [1974]) and that pregnant
women ready and willing to work may not be denied unemployment compensa-
tion (423 U.S. 44 [1975]).
Absence of a consistent, comprehensible approach to this issue was further
indicated last month. In General Electric Company v. Gilbert, 45 U.S.L.W. 4031
(December 7, 1976), the Court confronted an employer’s plan providing nonoc-
cupational sickness and accident benefits to all employees, save only those with
disabilities arising from pregnancy. Construing Title VII of the Civil Rights Act of
1964, the Court declared this exclusion entailed no gender-based discrimination
at all!
With no pregnant problems on its calendar, 1975 brought the Supreme
Court back to the 1971–73 track. In Taylor v. Louisiana, 419 U.S. 522, the Court
overturned its 1961 Hoyt women’s jury service decision and declared unconstitu-
tional a Louisiana provision that restricted jury service by women to volunteers. In
Stanton v. Stanton, 421 U.S. 7, the Court declared unconstitutional a Utah law that
required parents to support a son until he is twenty-one but a daughter only until
she is eighteen. And in Weinberger v. Wiesenfeld, 420 U.S. 636, the Court struck
down one of a series of Social Security sex lines. It held a widowed father to be en-
titled to the same benefits to care for his child that a widowed mother receives.
752 Documents