Appellants Brief — Frontiero v. Richardson

JAN 12 1973

MICHAEL RODAK, JR.,CLER

; IN THE J

Supreme Court of the Anited States

Octoper Trrm, 1972

No. 71-1694

>

SHarron A. Frontrego and Joseru FRONTIERO,

Appellants,

—_—vi—

Maus R. Larep, as Secretary of Defense, his successors and

assigns; Dr. Ropert C. Szamans, JR., as Secretary of the Air

Force, his successors and assigns; and Cou, CHaRues G. WEBER,

as Commanding Officer, Maxwell Air Force Base, Alabama, his

successors and assigns,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

SS eS

JOINT REPLY BRIEF OF APPELLANTS AND

AMERICAN CIVIL LIBERTIES UNION

AMICUS CURIAE

eee

a

Rora Baprr Ginssura JOsEPH J. LEvIN, JR.

Mewm L. Wuur Morris 8. Dzzs, Jr.

BeenDa Frricen Fasteau Southern Poverty Law

Mago Fuigzen Fasrzau Center

American Civil Liberties 125 Washington Avenue

Union Montgomery, Alabama

22 East 40th Street Attorneys for Appellants

New York, New York 10016

Attorneys for Amicus Curiae

INDEX

A ‘The quality of genuine rationality review has been

_isconceived by appellees

B Legislative judgments: about social roles solely on

the basis of sex invoke a suspect criterion

Cores

TABLE oF AUTHORITIES

Faruki v. Rogers, 349 F. Supp. 723 (D.D.C. 1972)

Goesaert v. Cleary, 335 U. s. 464 (1948)

Graham v. Richardson, 403 U.S! 365 (1971)

Hernandez v. Texas, 347 U.S. 475 (1954)

i v. Florida, 368 U.S. 57 (1961)

Vorits v. Commissioner, —— F.2d —, 41 U. S.L.W.

2293 (10th Cir, Nov. 22, 1972)

Maller v. Oregon, 208 U.S. 412 (1908)

Bed v. Reed, 404 U.S. 71 (1971)

Sapiro v. Thompson, 394 U.S. 618 (1969)

ley v. Illinois, 405 U.S. 645 (1972)

miiams v. McNair, 316 F. Supp. 134 (D.S.C. 1970),

aff'd mem., 401 U.S. 951 (1971)

dliamson v. Lee Optical Co., 348 U.S. 483 (1955)

Constitutional Provisions:

United States Constitution

Fifth Amendment

Fourteenth Amendment

Other Authorities:

Amundsen, The Silenced Majority: Women and Amer-

ican Democracy (1971) 8, 12

Broverman, Vogel, Broverman, Clarkson & Rosen-

krantz; Sex-Role Stereotypes: A Current Appraisal,

28 J. Social Issues 59 (1972)

Davids, New Family Norms, 8 Trial 14 ORD sis

Dinitz, Dynes & Clarke, Preference for Male or Female

Children: Traditional or Affectional, 16 Marriage &

Family Living 128 (1954) |

Epstein, Women and Professional Careers: The Case

of the Woman Lawyer 140 (1968) (thesis on file at

the Faculty of Political Science, Columbia Univer-

sity)

Fernberger, Persistence of Stereotypes Concerning

Sex Differences, 43 J. Abnormal & Social Psychol-

ogy 97 (1948)

Flexner, Century of Struggle (1959)

Freund; The Equal Rights Amendment Is Not the

_ Way, 6 Harv. Civ. Rts. Civ. Libs. L. Rev. 234 (1971)

Glancy, Women in Law: The Dependable Ones, 21

Harv. Law School Bulletin 22 (June |) ee wits

Gunther, Foreword: In Search of Evolving Doctrine

on a Changing Court: A Model for a Newer Equal

Protection, 86 Harv. L. Rev. 1 (1972) ....».°

Hacker, Women as a Minority Group, Social Forces,

no. 3 (1951)

PAGE

Horner, Toward an Understanding of Achievement-

Rédated Conflicts in Women, 28 J. Social Issues 157

(i972)

= Why Women Fail, Psychology Today, Novem-

et 1969

fajle, Who Shall Be Principal, A Man or a Woman?

fhe National Elementary School Principal 23 (Jan-

wiry 1969)

inston & Knapp, Sex Discrimination by Law: A

ee

ay, A Comparison of the Sexes in Their Attitudes

id Beliefs on Women, 34 Sociometry 399 (1940) ....

yum, A Note on Sex Differences in the Development of

Masculine and Feminine Identification, 66 Psycho-

gical Rev. 126 (1959)

Kee & Sherriffs, Men’s and Women’s Beliefs, Ideas,

tad Self-Concepts, 64 Am. J. Sociology 356 (1959) ....

- & Sherriffs, The Differential Evaluation of

fales and Females, 25 J. Personality 356 (1957) _...

iitagu, The Natural Superiority of Women (rev.

el, 1968)

illips, On Location with the WACS, Ms. Mag. 53

Nov. 1972)

Maident’s Commission on the Status of Women,

American Women 44 (1963)

ftesman, Federal Remedial Sanctions : Focus on Title

al, 5 Valp. L. Rev. 374 (1971) ..

Rosenkrantz, Vogel, Bee, Broverman & Broverman,

Sex-Role Stereotypes and Self-Concepts in College

Students, 32 J. Consulting & Clinical Psychology 287

(1968) 11-2

Rossi, Inequality Between the Sexes, in R. J. Lifton

ed., ‘The Women in America 106 (1964)

San Francisco Chronicle, July 26, 1970, Magazine see.

tion, p. 7

Schiller, The Widening Sex Gap, Library J © ar 1097

(March 15, 1969)

Sherriffs & Jarrett, Sex Difference in Attitudes About

Sex Differences, 35 J. Psychology 161 (1958) ...........

Sherriffs & McKee, Qualitative Aspects of Beliefs

About Men and Women, 25 J. Personality 451 (1957)

Smith, Age and Sex Differences in Children’s Opinions

Concerning Sex Differences, 54 J. Genetic Psychol-

ogy 17 (1939)

United Nations Declaration on Elimination of Discrim. |

ination Against Women, adopted by the General As-

sembly on November 7, 1967, art. 10

Up from the Pedestal (A. S. Kraditor ed. 1968)

U.S. Women’s Bureau, Dept. of Labor, Fact Sheet: on

the Earnings Gap (rev. ed. Dec. 1971)

White, Jr., Educating Our Daughters (1950) ......... me

1

In THE

preme Court of the United States

Octoper Term, 1972

No. 71-1694

om ee naar

~ Swannon A. Fronriero and Joserx FRontieR0,

¥ ‘ Appellants,

~ i eA te

ga.

es

=

—vV.—

mx R. Lamp, as Secretary of Defense, his .successors

‘Mid assigns; Dr. Roserr C. Szamans, JR., as Secretary

‘ofthe Air Force, his successors and assigns; and Cot.

Bt: G. Wzser, as Commanding Officer, Maxwell Air

Base, Alabama, his successors and assigns,

. Appellees.

a

tS °

: mz FROM THE UNITED STATES DISTRICT COURT FOR THE

hss

oe DISTRICT OF ALABAMA, NORTHERN DIVISION

ce

Rf

JOINT REPLY BRIEF OF APPELLANTS AND

_ AMERICAN CIVIL LIBERTIES UNION

. AMICUS CURIAE

4 du _ b nad ay }.

WAS ON. Pi

A.

quality of genuine rationality review has been

ceived by appellees.

Asserting that the statutory exclusions here at issue,

" aU » they exclude women from “economic benefits,” must

he pheld “if any state of facts reasonably may be conceived

a

Sete

*

2

to justify [them]” (Br. Appellees 7), appellees look to this

Court for minimal judicial scrutiny and seek to avoid mor

vigorous rationality review. Observing that “legislative

history sheds little light on the reasons for the different

treatment of male and female members of the service” (Br.

Appellees 7), appellees invite the Court to speculate with

them upon a possible rational basis for withholding from

servicewomen fringe benefits accorded similarly situate

servicemen. The minimal review urged by appellees finds

support in decisions of this Court conspicuous during a

period in which “property” interests were relegated toa

hands-off area. See, e.g., Williamson v. Lee Optical Co,

348 U.S. 483 (1955), and the enlightening discussion in Gu.

ther, Foreword: In Search of Evolving Doctrine on

Changing Court: A Model for a Newer Equal Protection,

86 Harv. L. Rev. 1, 37-41 (1972). However, reformulation

developed most notably during the 1971 term points decid.

edly toward more genuine judicial inquiry into the rational

basis of legislative classifications. As Professor Gunther

points out in his scholarly analysis, this Court appropri-

ately regards the equal protection principle as a constitu.

tional safeguard “with considerable bite.” Id. at 12. Rea.

sonableness is to be gauged on the basis of materials offered

to the Court by the defenders of discrimination; it is not to

be founded upon data hypothesized by the Court (or by

appellees). Id. at 21, 47.

Appellees concede the obscurity of evidence of legislative

purpose in excluding married servicewomen from fringe

benefits granted married servicemen, but hypothesize a

“obvious” or “apparent” congressional judgment: the hus

band is the breadwinner; the wife is dependent. (Br. Appel-

lees 8, 11-12.) Concededly, no empirical inquiry informed

the supposed judgment that “exceptions where the wife of

iceman has an independent source of income” are only

‘qeasional.” (Br. Appellees 11.)' Rather, the “judgment”

wallels the one attributed to the Idaho legislature in Reed

The legislature when it enacted this statute evidently

ncluded that in general men are better qualified to

as an administrator than are women. ... While this

assification may not be entirely accurate, and there

@ doubtless particular instances in which it is incor-

we are not prepared to say that it is so completely

ithout a basis in fact as to be irrational and arbitrary.

Idaho 511, 514, 465 P. 2d 635, 638 (1970).

, h “judgments” derive from the same stereotype: bread-

wining and the experience it brings are part of man’s

id; dependency and shelter from worldly experience

i characteristic of woman’s place. The “presumptions of

pendency” hypothesized by appellees are no more “rea-

Bble,” no more “in accord with the realities of American

iff” (Br. Appellees 10), than were the presumptions as to

e1 es of experience of men and women proffered in

i,

“aq

* This Court swiftly rejected the hypothesized “ra-

fact dispelling the myth that income earning wives are only

ional,” see Br. Amicus Curiae 24-27. Cf. Davids, New Family

ms, 8 Trial 14 (1972): “The premises [he works . . . she stays

e] may be less and less true, but until very recently, they

‘hot challenged as an image of the ‘typical’ marriage and a

ition of its ‘normal’ form. More and more people are realizing

these premises are not true, and perhaps not worth making

matter the fact.”

_gane asserted “dependency presumptions” are far less “rational,”

atts firmly rooted in “the realities of life,” than the presumption

eeturned by this Court in Stanley v. IUinois, 405 U.S. 645 (1972).

gnited Nations Declaration on Elimination of Discrimination

mst Women, adopted by the General Assembly on November 7,

mm, article 10 (declaring as fundamental the right of women to

. ive family allowances on equal terms with men).

_—

eX

4

tional basis” in Reed. 404 U.S. 71 (1971). Similarly, any

meaningful judicial inquiry must result in rejection of the

rationality of the legislative exclusion in the instant case,

2. Startling to any attentive reader of this Court’s opin

ions in Reed and Shapiro v. Thompson, 394 U.S. 618 (1969),

appellees assert that absent a “fundamental right” or,

classification declared “inherently suspect,” “administra.

tive considerations” suffice to justify discriminatory classi.

fications. In Reed, no “fundamental right” was at stake, and

the sex-as-a-suspect-classification issue was not reached

This Court found “some legitimacy” in the “administrative

considerations” urged in support of the legislation. None

theless, the Court concluded that the means adopted, dif.

ferential treatment of the sexes based on assumptions

about the qualifications of most men and most women,

failed to survive scrutiny under the rationality formula

As to Shapiro v. Thompson, appellees simply ignore the

Court’s assertion that the challenged provision did not

even meet minimum scrutiny standards. 394 U.S. at 638,

3. Equally startling in light of Reed is the suggestion

that congressional movement toward equalizing fringe bene-

fits for married military personnel, regardless’ of sex,

counsels more deferential review. (Br. Appellees 12-13, 20.)

The question before this Court is of course the constitu

tionality, not the “wisdom” of the challenged statutes. But

the quality of the Court’s review is not determined by the

presence or absence of stirrings in Congress. In contrast

to the statutes at issue in the instant case,,which have not

been amended to equalize the treatment of men and women,

the provision challenged in Reed had been eliminated by the

Idaho legislature, apparently without retrospective effect,

f

f

5

pal months before this Court’s decision. 404 U.S. at

475 n4. See also Morite v. Commissioner, —— F.2d

a #1 US.L.W. 2293 (10th Cir., Nov. 22, 1972) (pro-

n of Internal Revenue Code held to deny equal protec-

to never-married men had been prospectively elim-

by Congress eleven months prior to Court of Appeals

on).

‘ have appellees perceived the significance of Reed

relevance of “sociological changes” and “changes

fy e legislative climate.” (Br. Appellees 12, 13.) The

ho provision challenged in Reed was originally enacted

64, a time when most adult women still labored under

restrictions imposed on the female member of a mari-

iunit. See L. Kanowitz, Women and the Law: The Un-

nish ed Revolution 40-69 (1969). A legislature blind to the

ic inequity of denying full contract and property rights

ied women might well find it reasonable to prefer

5 for appointments that frequently require the con-

wmmation of commercial transactions. What appeared

ze nable to men of the law in earlier years was declared

y 8 unanimous Court unreasonable in 1971. For “time

fd) eroded the foundation of the [legislative] judgment”

Appellees 12), and this Court recognized that reex-

bation was its responsibility.

es a

i sum, appellees’ strained effort to supply a rational

ais for the challenged statutes, “reasonably related to a

moper legislative objective,” cannot survive genuine ration-

lity review. Neither the stereotypical description of bread-

4 ing men and dependent women, nor the asserted leeway

f “administrative considerations” can, consistent with

ed, impart rationality to the differential treatment of

ile ly situated men and women. And it is far too late

6

in the day to suggest that vigorous constitutional reviey

of an existing controversy can be avoided or blunted »

the speculation that change for the future may be forth.

coming from the legislature.

B.

Legislative judgments about social roles solely on the

basis of sex invoke a suspect criterion.

1. This Court has never to date recognized sex as a “sus.

pect” criterion for legislative distinctions’ and, according

to appellees, it never should. Restrained review is advo.

cated unless and until the Equal Rights Amendment is

ratified, in which event, appellees indicate, an abrupt

change from minimal to strictest scrutiny may well be

warranted. (Br. Appellees 19-20.) It is doubtful that Con.

gress envisioned the abrupt change suggested by appellees.

Principal proponents of the Amendment in the House and

Senate believed that appropriate interpretation of the

fifth and fourteenth amendments by this Court would

secure to men and women equal treatment under the lav.

See Br. Amicus Curiae 19-20. Even those who counseled

against the Amendment anticipated that “a few significant

decisions of the Supreme Court in well-chosen cases under

the fourteenth amendment would have a highly salutary

effect.” Freund, The Equal Rights Amendment Is Not the

Way, 6 Harv. Civ. Rts. Civ. Libs. L, Rev. 234, 242 (1971).

* It has been suggested, however, that the Court may be moving

in that direction :

It is difficult to understand [the Reed] result ‘without an a

sumption that some special sensitivity to sex as a c

factor entered into the analysis. . . . Only by importing some

special suspicion of sex-related means from the [suspect classi-

fication] area ean the result be made cathe persuasive.

Gunther, supra, 86 Harv. L. Rev. st 34.

7

g declaration of the sex criterion as suspect in the

i case, appellants merely reiterate what was plain

2 who, a decade ago, adverted to the pervasive social,

; a mie and political effects of sex discrimination in

ferican society: “Equality of rights under the law for

iipersons, male or female, is so basic to democracy and its

. : titment to the ultimate value of the individual that it

t be reflected in the fundamental law of the land.”

De sident’s Commission on the Status of Women, American

" 44-45 (1963) (statement indicating expectation that

iis Court would provide “imperative” clarification to re-

HOV ve e “ambiguities with respect to the constitutional pro-

4 on of women’s rights”).

3

. Appellees concede that a prime ingredient eliciting

fet scrutiny is inherent in the sex criterion: “sex, like

é and national origin,‘ is a visible and immutable bio-

gical characteristic that bears no necessary relation to

y.” (Br. Appellees 15.) On the other hand, appel-

f note that “racial distinctions, unlike sex distinctions,

an especially disfavored status in constitutional his-

.” (Br. Appellees 16.) This proposition is beyond

. The paramount concern of Congress in the pe-

B during whith the post-Civil War Amendments were

Mopted surely did not relate to women, but neither did it

iat @ to newcomers to our shores. Yet the principle of

qu protection, from the start, reflected the fundamental

be am n that legislative distinctions should not be made on

‘fe tbasis of characteristics that bear no necessary relation-

ip Ftc ability and over which persons have no control. In

¢

e sex, like race, is a most visible and immutable biological

istic, national origin, a “suspect” category, fits less com-

ly within the definition.

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x

8

accordance with this notion, in 1971 this Court formally

enshrined alienage among the suspect categories. Graham

v. Richardson, 403 U.S. 365 (1971).°

3. Appellees urge, however, that although the sex cri-

terion “bears no necessary relationship to ability,” it can

not rank as suspect because women constitute a numerical

majority that has not been excluded from the political

process. Skipped over is the fact that through most of

our nation’s history, total political silence was imposed on

this numerical majority. See E. Flexner, Century of Strug-

gle (1959) ; Up from the Pedestal (A. 8. Kraditor ed. 1968);

Br. Amicus Curiae 11-18. Even today, in many states,

women do not share with men full rights and responsibili-

ties with respect to jury service. See Br. Amicus Curiae 41-

42: In educational institutions, on the job market and, most

conspicuously, in the political arena, women continue to

occupy second-place status.’ Suggestive of the value that

* Cf. Hernandez vy. Texas, 347 U.S. 475, 478 (1954) (rejecting s

“two-class” rw A of equal protection) ; Faruki v. Rogers, 349 F.

Supp. 723 (D.D.C. 1972).

(1964). «

Sex discrimination charges represent the second largest ca

of complaints filed with the Equal Employment Opportunity

mission ; in local EEOC offices, sex discrimination charges have rm

as high as 60 percent of total complaints. Pressman, Federal &

Remedial Sanctions: Focus on Title VII, 5 Valp. L. Rev. 374, 379

nn. 31-33 (1971). Despite legislation promising equal opportunity

and equal pay, the earnings gap between men ang women has been i

. See U.S. Women’s Bureau, Dept. of r, Fact Sheet

on the Earnings Gap (rev. ed. Dec. 1971). So has the gap in uy ™

ward rong sg ie ¢.g., Hoyle, Who Shall Be Principal, A Man or

a Woman f. National Elementary School Principal 23-25 (Jan-

uary 1969} (in 1928, 55 percent of elementary school principally

/

/

j

be assigned to appellees’ head count, former Secre-

yot Labor Hodgson observed in 1970 that discrimination

jinst women in the labor market is “more subtle and

wore pervasive than against any other minority group.” '

men’s “political influence” could be characterized as

fantial” (Br. Appellees 16) only by substituting fancy

Fiact. Not a single woman sits in the United States

ite; only 14 women hold seats in the House of Repre-

@iatives. Over the past twenty years only one woman

chaired a House committee ;* no woman has ever chaired

senate committee. Less than 3 percent of positions in the

ioral government:at and above GS-16 rank are held by

@men.” As of October 31, 1972 women comprised almost

Pquarter of the foreign service, but less than 3 percent

chiefs of missions. At the state level, no woman

ves as governor, and less than 6 percent of state legisla-

‘are women."

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4

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ee

ue

@e Wor en; in 1968 only 12 percent of elementary school teachers,

#8 percent of elementary school principals were men) ; Schiller,

"Widening Sex Gap, Library Journal 1097-1101 (March 15,

} (in 1930, women were chief librarians in 19 of 74 large

ges and universities; in 1968, only 4 of these posts were occu-

bac women).

moted in ay San Francisco Chronicle, July 26, 1970, Maga-

fection, p. 7.

pngresswoman Lenore Sullivan chairs the House Merchant

Rterview with Helen Markoss, Director, Federal Women’s Pro-

me, Dept. of H.E.W., in Washington, D.C., Jan. 8, 1973.

rview with Gladys P. Rogers, Special Assistant to Deputy

t Secretary for Management for Women’s Affairs, Dept. o

, in Washington, D.C., Jan. 8, 1973.

3 State legislators number over 7700; women hold only 424 of

am offices. Interview with Ruth Mandel, Eagleton Center for the

ie

vo

a

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Ye

4 ay

tay as ee

10

4. Closely related to appellees’ head count argument,

and as their final reason for denying that the sex criterion

is suspect, appellees assert that sex distinctions “do not

express an implied legislative judgment of female inferior.

ity.” (Br. Appellees 17-19.) No such judgment, according

to appellees, is embodied in a statute declaring women unfit

for bartena.ig (Goesaert v. Cleary, 335 U.S. 464 (1948).

@ statute establishing a women’s college to equip females

to serve as secretaries and homemakers and in other oeep.

pations “suitable to their sex” (the state’s men’s college, by

contrast, was established as a military school offering a full

range of liberal arts and engineering degrees) (Williams

v. McNair, 316 F. Supp. 134 (D.S.C. 1970), aff’d mem,

401 U.S. 951 (1971)); a statute presuming that women are

preoccupied with home and. children and therefore should

be spared the bother of serving on juries (Hoyt v. Florida,

368 U.S. 57 (1961) ); and a statute that has become a major

roadblock to women seeking equal opportunities for re.

muneration and promotions in blue-collar employment

(Muller v. Oregon, 208 U.S. 412 (1908) ).%

Legal scholars who have assessed these legislative judg.

ments less perfunctorily than appellees view the matter dif.

ferently. Each judgment supposed by appellees to imply.no

“stigma of inferiority” has been exposed as resting upon

American Woman & Politics, Rutgers University, in Newark, NJ,

Jan. 8, 1973.

While a n need not be a member of a group by birth, religion

or class iation to represent that group fairly and in a manner

rseponsive to its interests, the chances of effective representation

are unquestionably enhanced when group members oceupy decision-

making posts. i, .

72 With the evidence of women’s weakness offered at the turn of

the in Muller, compare A. Montagu, The Natural Superi-

ovity of Women (rev. ed. 1968).

A

P

wiht

=

vine

hy ‘

the

-

pe

Ks

f.

i ae

h, A Note on Sex Differences im the Development of

11

” tified (or at least unsupported) assumptions about

dual capacities, interests, goals and social roles solely

je basis of sex.” Johnston & Knapp, Sex Discrimina-

wy Law: A Study in Judicial Perspective, 46 N.Y.U.L.

675, 676, 682-92 (bartending), 697-702 (“protective”

Hegislation), 708-21 (jury service), 721-26 (public edu-

») ) (1971). See Br. Amicus Curiae 34-44.

Sslative judgments “protecting” women from full par-

ation in economic, political and social life have been

led “benign” by persons who regard them as marking

or women a “separate but equal” role. Most men and

m claim they value qualities traditionally associated

je mother-wife, e.g., selflessness, sensitivity, passivity,

Msertiveness. But investigations of social scientists

doubt that traits associated with the male bread-

¢é. ne- -, assertiveness, aggressiveness, independence,

ied more. Broverman, Vogel, Broverman, Clarkson

nkrantz, Sea-Role Stereotypes: A Current Ap-

98 J. Social Issues 59 (1972). See also Dinitz,

B& Clarke, Preference for Male or Female Children:

: ‘ onal or Affectional, 16 Marriage & Family Living

1954); Fernberger, Persistence of Stereotypes Con-

ee Differences, 43 J. Abnormal & Social Psychol-

7 (1948) ; Kitay, A Comparison of the Sexes in Their

s and Beliefs on Women, 34 Sociometry 399 (1940) ; :

and Feminine Identification, 66 Psychological

li 126 (1959); McKee & Sheriffs, The Differential

lation of Males and Females, 25 J. Personality 356

) + McKee & Sherriffs, Men’s and Women’s Beliefs,

s and Self-Concepts, 64 Am. J. Sociology 356 (1959) ;

mkrantz, Vogel, Bee, Broverman & Broverman, Sez-

f ereotypes and Self-Concepts in College Students, 32

12

J. Consulting & Clinical Psychology 287 (1968) ; Sherriff;

& Jarrett, Sex Difference in Attitudes About Sex Differ.

ences, 35 J. Psychology 161 (1953); Sherriffs & McKee,

Qualitative Aspects of Beliefs About Men and Women, %

J. Personality 451 (1957) ; Smith, Age and Sex Differences

in Children’s Opinions Concerning: Sex Differences, 54 J,

Genetic Psychology 17 (1939) ; L. White, Jr., Educating Our

Daughters (1950).

e

Evidence abounds that the “submissive majority” per.

ceives the real judgment underlying “benign” classifications

and the “separate but equal” euphemism. Growing up ina

society in which virtually all positions of influence and

power are held by men, women believe that they belong to

the inferior sex. Women’s lack of self-esteem and their own

belief, shared by men, that it is better to be male than

female is reflected, for example, in the fact that male babies

are preferred over female babies by both parents.” As

Matina Horner observed, “It has taken... a long time to

become aware of the extent to which [the stereotypical]

image of woman has actually been intérnalized, thus acquir-

ing the capacity to exert psychological pressures on [wo-

men’s] akon of which [women themselves] are fre-

quently unaware .... [SJocial and, even more importantly,

internal psychological barriers rooted in this image really

limit the opportunities to men.” Horner, Toward an Under-

standing of Achievement-Related Conflicts in Women, B

J. Social Issues 157, 158 (1972).™

™* See K. Amundsen, supra at 122.

** See also Horner, Why Women Fail, Psychology Today, No

ber 1969. Even women lawyers, oo self-assured group than

Feat, <xhibit anxiety about success lest it brand them “unfeminine”

See Glancy, Women in Law: The Dependable Ones, 21 Harv. Law

School Bulletin 22, 30-31 (June 1970).

The originator of the suspect classification doctrine might recog-

nine today the extent of the prejudice, often tanconscious but niue

13

Women who seek to break out of the traditional pat-

face all of the prejudice and hostility encountered by

wabers of a minority group. Worse than being “discrete

‘i insular,” ** which for other minority groups at least

wi the advantage of fostering political organizing, women

arated from each other and therefore remain far

from the political potential appellees ascribe to

f. For women who want to exercise options that do not

fwithin stereotypical notions of what is proper for a

famale, women who do not want to be “protected” but do

wait to develop their individual potential without artificial

q@iitraints, classifications reinforcing traditional male-

famale roles are hardly “benign.” Where,.as in the instant

ais, a wife and husband deviate from the norm—the wife

‘itthe family breadwinner, the husband “dependent” in the

e that the wife supplies more than half the support for

; iti devastating, encountered by women who want more than a

‘fate a man’s world. See C. F. Epstein, Women and Professional

(mers: The Case of the Woman Lawyer 140 (1968) (thesis on file

aie of Political Science, Columbia University) :

7a) 1922 Barnard graduate recalled :

At the time I was ready to enter law school, women were

Epon epon as people who should not be in law schools. . . .

“I wanted very much to go to Columbia, but I couldn’t get in.

~I went over to see Harlan Stone, Dean Stone, who was

‘later Chief Justice, and asked him to open the law school

to women] and he said no. . . . I asked why . . . and he said

e don’t use we don’t.” That was final.

m tape of author’s conversation with Frances Marlatt,

Attorney, Mount Vernon, New York.)

is appellees acknowledge, women in the armed forces consti-

& very small minority; living apart from men and working at

mat are normally sex-segregated, they are a more “discrete

group than non-white men who live and work along-

White men in the uniformed services. See Phillips, On Loca-

fith the WACS, Ms. Mag. 53 (Nov. 1972).

es

14

the marital unit**—“benign” legislative judgments serve as

constant reminders that, in the view of predominantly or

all-male decision-making bodies, life should not be arranged

this way.

CONCLUSION

In sum, appellants submit that designation of the sex

criterion as suspect is overdue, provides the only wholly

satisfactory standard for dealing with the claim in this

case, and should be the starting point for assessing that

claim.

Respectfully submitted,

Rurs Baper Givssure JosePH J. Levin, Jr.

Meuvix L. Wuur Morris 8. Dzzs, Jr.

Brenpa Fericen Fastzau Southern Poverty Law

Maro Feigen Fasrzav Center

American Civil Liberties 125 Washington Avenue

Union Montgomery, Alabama

22 East 40th Street Attorneys for Appellants

New York, New York 10016

Attorneys for Amicus Curiae

(Br. Appell 3) |

Fr. lees 3.

here exclude Josep’

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