Sex Discrimination and State Constitutions: State Pathways through Federal Roadblocks


It is easy to forget that federal courts and federal laws have not long been friends and protectors of women. The strides made by women under the protective wing of Title VII may blind one to the fact that discrimination on the basis of sex was added to that statute’s list of prohibitions by the law’s opponents in an effort to trivialize and destroy it. The victories won by sex discrimination plaintiffs in federal court, in general, overshadow the serious limitations placed on such actions by the Supreme Court. The Court, for example, applied a rational basis test to fourteenth amendment sex discrimination claims as late as 1971, and the full court has yet to recognize sex as a suspect class.

And there are signs that federal commitment to women’s rights is weakening, still further. Retrenchment in the Supreme Court is seen in the failure to accept pregnancy as a sex-based classification, the decision to permit Congress to ban Medicaid payments for abortions, the objections to affirmative action programs, and even a return to paternalistic notions of the need to protect women from men’s bestial nature as grounds for denying women employment. The recent failure to ratify the Equal Rights Amendment (ERA) has already fueled this retrenchment. At least one Supreme Court Justice has stated that any decision on the Court’s treatment of fourteenth amendment sex discrimination claims should await ratification or failure of the ERA. Thus, it seems likely that some members of the Court will use the non-ratification of this proposed amendment as a justification for further retrenchment.

Although the news from the federal “front” is not uniformly dismal, even the most optimistic federal observer must acknowledge that an alternate source of protection for equal rights should be considered by today’s sex discrimination claimant. Many such claimants ignore the oldest American safeguards of civil rights-the state constitutions and the state courts.

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