Will justices bar sex bias? Key case: Feminists and the Clinton administration hope the Supreme Court will outlaw all sexual discrimination when it rules on a case challenging the right of Virginia Military Institute to exclude women.

January 14, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Nearly a century and a half after the women's rights movement began, and just over 75 years after women gained a place in the U.S. Constitution with the right to vote, the Supreme Court is about to take up a plea to start a new legal revolution among the sexes.

In a case that began in 1989 when an anonymous young woman failed to get into the male-only cadet ranks at Virginia Military Institute, the justices confront this week the most energetic effort in years to gain full constitutional protection for women.

If successful, that effort could mean changes for the women and men in the military, for pregnant women, for the elderly who receive Social Security, for boys and girls in public schools, and for all who seek to prove sex discrimination.

Regardless of the outcome, the women on the Supreme Court -- Justices Sandra Day O'Connor and Ruth Bader Ginsburg -- profoundly influenced how and why the case came to the court and will no doubt have a large say in the decision it will reach.

The appeal, set for a hearing Wednesday, is a test of the constitutionality of single-sex military colleges that are run or financed by state government. There are two of those: VMI, in Lexington, Va., and The Citadel, in Charleston, S.C. -- both open only to male students.

Taken one level further, the case could have an impact reaching virtually all single-sex public education, from high school through college.

At its broadest level, this single case may turn out to be of historically sweeping dimensions.

At that level, it is a bold attempt to get by judicial decree something close to an "equal rights amendment" to the Constitution: An individual's sex could no longer provide an automatic excuse for official discrimination, and different treatment of the sexes would be permitted only in a narrow range of situations.

To bring that about, the Supreme Court would have to declare that all government action treating the sexes differently would have to satisfy "strict scrutiny" in the courts. That is the toughest test of constitutionality there is, and few forms of unequal treatment can survive it.

That is close to the result that would have been mandated had the states ratified the Equal Rights Amendment. The ERA said: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."

Susan Deller Ross, a Georgetown University law professor and director of the law school's sex discrimination legal clinic, said: "This case gives us a chance to end the vestiges of the dual system of law that has existed in this country for men and women. It was that system of law, in fact, that slavery was modeled on."

The VMI ruling, she said, "can also bring us into the 21st century, in a leadership position around the world" on the rights of women.

If the outcome goes as far as advocates such as Ms. Ross wish, it would have consequences reverberating across the cultural landscape. It would take years for such a revolution to run its course.

The opponents of such a constitutional revolution see it as deeply threatening, bringing a a major disruption of life as it now exists in America. "I think it would be a disaster," said Phyllis Schlafly of St. Louis, the president of the Eagle Forum and leader of the "Stop ERA" campaign that helped block the proposed amendment.

"It would be a tremendous victory for the feminists," she said, bringing "a complete restructuring of the whole society. It is an attack on human nature, on common sense, on marriage, and on relationships between men and women."

Impact greatest for women

Perhaps the broadest practical consequences of full constitutional equality would occur for women -- especially pregnant women -- and for the military.

Pregnancy could no longer be used as a disqualifying factor for women in government and military jobs or access to public benefits and programs, and full equality between men and women in the military ranks would be closer to a reality -- even in the hottest war zones.

The Supreme Court has ruled in the past that since only women can be pregnant, treating women differently because of their reproductive capacity is not unconstitutional discrimination. That decision may not be able to survive a challenge under the new, broader doctrine now being pressed.

The court also has ruled that it is not unconstitutional to have a military draft that requires only men to sign up, and it has indicated that women in the military may be kept out of combat duties.

Although women may now fly combat planes and serve on Navy warships, they are barred by the Army and Marines from infantry assignments that could draw them into hand-to-hand combat. That bar, too, might be vulnerable, if equality were enforced as rigorously as a "strict scrutiny" rule would require.

Changes unpredictable

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