The opinion
HENRY, Justice,
concurring.
The time has come for us to stop whispering and whistling about the constitutionality of Sections 22-101 and 22-108, T.C.A., and to say flat-footedly that these Code provisions are unconstitutional.
At least four times this insistence has been made in the Court of Criminal Appeals. Each time we could not reach the issue on certiorari. It is apparent that this has become one of those issues of overriding, recurring, and substantial importance demanding resolution but evading review. Moore v. Ogilvie, 394 U.S. 814 , 89 S.Ct. 1493 , 23 L.Ed.2d 1 (1969).
What we say might be dictum but it would be so demonstrably clear that to denounce it as dictum would be a study in futility.
I am impressed with the dissenting opinion of Judge Daughtrey in this case. I particularly applaud these comments:
*677 I am persuaded that T.C.A. §§ 22-101 and 22-108 are facially unconstitutional. The legislature in determining the qualifications for jury service has provided unequivocally in T.C.A. § 22-101 that a woman “shall have the option of serving or not when summoned to jury duty. 1 Under § 22-108 a woman choosing to exercise her option not to serve is merely relieved of the responsibility of appearing in Court in response to the summons:
Any woman may, when summoned by an officer or otherwise, at that time state to said officer or notify the court by mail, that said woman does not desire to serve and she may thereby be excused from such service.
By use of the term “may” the legislature obviously meant that excuse by a summonsing officer or through the mail are not a woman’s exclusive means of declining service; presumably she may also come to court after a summons has been executed and invoke her unqualified option not to serve under T.C.A. § 22-101. I therefore think it is clear that a woman in Tennessee may decline jury service for no reason other than her sex, and that upon request her option must be honored by the trial court, although it may also be granted by a court officer or after notice by mail.
Any woman can decline jury service; therefore, as Judge Daughtrey points out, all women can.
These, and all other statutes, that single out women for preferential treatment by relieving them from the duties and obligations of citizenship are as offensive as those that abridge their rights and privileges as citizens. These statutes are a throwback to the now wholly discredited belief that “a woman’s place is in the home”. This is but a subtle form of antifeminism under which women are denied a portion of their rights as citizens.
I am persuaded that all gender-based classifications are constitutionally infirm. Irrespective of the time frame of Taylor v. Louisiana, 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975), and independent of that case, I would hold that they violate the provisions of Art. 11, Sec. 8 of the Constitution of Tennessee.
And I would hold it now.
. Male citizens, if qualified under § 22 101 (requiring a minimum age of 21 years, United States citizenship, Tennessee residency, and durational residency of 12 months in the county of service) and not disqualified under § 22-105 (by reasons of interest in the case or relationship to the parties) nor incompetent under § 22-102 (because infamous or mentally or physically incompetent), must serve unless excused under § 22-103 (by reason of occupation) or under § 22-104 (for “hardship”).