"Sex Discrimination - The Search for a Standard," by Natalie Wexler
When the Supreme Court handed down its opinion in Reed v. Reed in November of 1971, the decision made headlines across the country. For the first time since the Fourteenth Amendment had gone into effect in 1868, the Court had struck down a state law on the ground that it discriminated against women in violation of the Equal Protection Clause.
The law in question-enacted in Idaho in 1864--required that when the father and mother of a deceased person both sought appointment as administrator of the estate, the man had to be preferred over the woman. When Richard Lynn Reed died intestate (without a will) at the age of sixteen, each of his divorced parents-Sally and Cecil-filed a petition seeking to be appointed administrator of their son's estate. The probate court, relying on the language in the 1864 statute, chose the father.
In a terse and unanimous opinion, the Idaho Supreme Court rejected Sally Reed's contention that the statute's preference for men over women was "arbitrary and capricious." The court ruled that the legislature might have reasonably concluded that, in general, "men are better qualified to act as [administrators] than are women." In addition, the mandatory preference for men served the legitimate purpose of "curtailing litigation over the appointment of administrators."
The U.S. Supreme Court's opinion was also brief and unanimous, but it came to the opposite conclusion. Chief Justice Warren E. Burger, writing for the Court, formulated the question as "whether a difference in the sex of competing applicants for letters of administration bears a rational relationship" to the state's objective of reducing expensive probate litigation. Burger noted that Idaho did not deny letters of administration to women altogether; in fact, a woman whose spouse died intestate was given preference over any male relatives of the decedent. In a passing glance at society as a whole, Burger observed that-probably as a result of women's greater longevity-many estates were administered by surviving widows.
Without much further discussion, the Court held that the Idaho statute violated the Equal Protection Clause. "To give a mandatory preference to members of either sex over the other, merely to accomplish the elimination of hearings on the merits," Burger wrote, "is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment."
Although Reed has been hailed as a landmark decision, it is almost as remarkable for what it did not do as for what it did do. Sally Reed's attorneys in the Supreme Court (including Ruth Bader Ginsburg, then a volunteer attorney for the American Civil Liberties Union [ACLU]) had focused on the need to subject gender classifications such as the one at issue to strict scrutiny under the Equal Protection Clause: their brief devoted forty-six pages to the strict scrutiny standard, as compared to only seven pages arguing the fallback position that the statute should be invalidated under a rational basis test. But the Court's opinion simply applied the rationality standard without mentioning the possibility of adopting anything more stringent.
The advantage of this silence, for women's rights advocates, was that the Court did not explicitly reject the idea of designating gender a "suspect classification," thus leaving the issue open for another day. And given the Court's prior tolerance of similar discriminatory statutes, Reed clearly signaled a shift in attitude: state legislatures no longer would be able to assume that women could be excluded simply on the ground of administrative convenience. The Court, it seemed, was catching up to the rest of society, where-as the ACLU's brief pointed out-women were entering the workforce in unprecedented numbers, and statutes such as Idaho's were beginning to look like quaint artifacts of an outdated era. (In fact, by the time Reed reached the Supreme Court, the discriminatory Idaho provision was about to be effectively repealed.)
But the Court's use of the reasonableness test created uncertainty about what might come next, and was seen by some as hypocritical. After all, one feminist commentator pointed out, was it really so unreasonable-in 1971--for the Idaho legislature to conclude that men, in general, had more business expertise than women? Clearly the Court was not applying the reasonableness test in the traditional deferential manner-the way it had applied it, for example, in Williamson v. Lee Optical, a much-quoted 1955 case. There the Court had stated that, to satisfy the demands of the Equal Protection Clause, "the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it."
Had the Supreme Court adopted strict scrutiny in Reed, it would have sent an unmistakable signal to the lower courts that any legislation that discriminated on the basis of gender-even legislation intended to protect women-was invalid. But because the reasonableness test was so malleable, challenges to discriminatory legislation would now have to be resolved on a case-by-case basis.
Believing that more fundamental change was necessary, some women's rights advocates pinned their hopes on the Equal Rights Amendment, then pending in Congress. While the Reed decision was heartening, it seemed that only through a constitutional amendment could gender equality be firmly secured.