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.


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

Women's rights lawyers promoting that rule say they can't predict the extent of social or legal change that could be brought about by such a development. They argue that men, too, would benefit, at least some of the time.

Those advocates suggest that a sweeping ruling could force the Supreme Court to change its mind on issues such as these -- all involving sex-based government action, and all previously upheld by the court:

* Preferences for veterans in government jobs, a benefit that favors men more than women.

* Statutory rape laws that punish males but exempt underage females from any punishment.

* Property tax exemptions for widows but not for widowers.

* Social Security old-age payments that benefit women more than men.

* Less favorable protection for pregnancy in state disability programs than for male medical conditions.

A broad new declaration of sex equality by the court could increase the visibility of sex bias issues in general and might lead to stricter enforcement of federal and state laws seeking to outlaw discrimination based on sex.

Marcia D. Greenberger, co-president of the National Women's Law Center, said: "If the court does reach and decide" the broad issue the case raises, "it will have been the landmark case."

"All of the old arguments used to 'protect' women out of education, jobs and civil opportunities find themselves being played out in this case," she said.

The forces of opposition to a new constitutional rule have lined up for the VMI case to resist such a wholesale change. For example, a coalition of the Family Research Council, Concerned Women for America, the Eagle Forum, and other conservative groups has joined in the case solely to combat the broad constitutional plea.

Putting an ERA equivalent into the Constitution, those groups told the court, not only would work a revolution in the way the military functions day to day, but also would take away legal protection for women within marriages and families, promote unwholesome bodily contact between boys and girls in school sports, encourage homosexual marriage, and reopen the abortion debate by requiring states to pay for abortions.

Existing protections

A number of federal laws and prior Supreme Court rulings protect against sex bias. Many states -- like Maryland -- have laws or constitutional clauses that do so too, in private and public life. Maryland, one of 17 states with an equal rights amendment in its state Constitution, has joined in this week's Supreme Court case in support of women's equality.

Whatever change has come in state and federal laws, the sexes in the United States do not have what equal rights advocates began seeking determinedly in the courts more than 25 years ago: a declaration under the Constitution that discrimination based on sex is as unconstitutional as discrimination based on race. For now, race bias and sex bias are different, constitutionally. Almost all forms of race bias through government action are outlawed under constitutional amendments or Supreme Court rulings.

But discrimination against one sex or the other isn't mentioned in the Constitution and is judged by a more relaxed constitutional measure -- one that has been interpreted often to tolerate differing and lower levels of protection under the law.

Not since a noted women's rights lawyer repeatedly demanded full equality from the court, but fell short in an unprecedented effort that began in 1970, have advocates for women pressed the court as diligently as they now are doing to achieve that result.

The most prominent lawyer in sex bias cases of a quarter-century ago is now a member of the Supreme Court, Justice Ginsburg.

Conservative groups see her still as an adversary.

"Ruth Bader Ginsburg has been promoting this [goal of absolute equality] forever," Mrs. Schlafly said.

On the court, Justice Ginsburg has pointed out that no decision has ruled out giving women the fullest protection the Constitution can bestow -- a kind of implied invitation to lawyers to test the court's current attitude.

Taking up that challenge, women's rights lawyers have the unexpected support of the Clinton administration. After treating the VMI case as one that could be decided within existing legal principles, with no expansion, the administration recently embraced the broadest argument for equality of the sexes. A wide-ranging debate, reaching the highest levels of the Justice Department, led to the change.

Earlier decision

Justice Ginsburg's presence for the VMI case is but one facet of its vivid symbolism. Sitting five places away from her will be Justice Sandra Day O'Connor -- the first woman named to the court, and the author of a major women's rights ruling 14 years ago that still stands as a landmark.

That earlier decision did not embrace the broad constitutional idea now being pressed, but neither did it rule against it.

Although the case will be argued by two men -- Deputy U.S. Solicitor General Paul Bender arguing against VMI, Washington attorney Theodore B. Olson for VMI -- the effort to push the case to new limits has been managed largely by women lawyers.

Denied admission

The VMI dispute, has been developing for more than six years. A young woman (she was anonymous then, and her identity remains protected today) wrote to the Justice Department that she had been denied admission to VMI because of her sex. Aides to then-Attorney General Richard L. Thornburgh told VMI of the complaint, but the Lexington college refused to change its policy excluding female cadets.

VMI, created in 1839, has never enrolled a woman. The military training program is known for its rigor. The program was described by a federal judge as one that "strips away cadets' old values and behaviors in order to create a mind-set" that enables VMI to mold them into highly disciplined "citizen soldiers." VMI believes that only males can take the stress.

VMI's program has been controversial for years. Off and on, young women had contacted the National Women's Law Center here, complaining about VMI's refusal even to consider a woman's application. But the Women's Law Center never found an individual willing to go through the public ordeal of taking on VMI.

When the young woman in 1989 took her complaint to the Justice Department, Attorney General Thornburgh decided that the government should sue VMI after the college balked at admitting women. As he said in an affidavit at the time, "the signer of the complaint is unable to initiate and maintain appropriate legal proceedings for relief."

On March 1, 1990, the government sued VMI. Now, after nearly six years, four lower court proceedings and one failed appeal by VMI to the Supreme Court early last year, the case is ready for final review by the justices.

The federal appeals court's most recent decision in the case upheld the right of VMI and the state of Virginia to keep women out of the VMI program, so long as a program of women's leadership training is maintained elsewhere.

Among judges on the appeals court who were upset by the ruling was U.S. Circuit Judge Diana Gribbon Motz, of Baltimore, who wrote that "anyone who is prepared to do combat for her country should be eligible to apply for what she perceives to be the best possible training."

To comply with the appeals court ruling, the state and VMI have set up a separate state-supported program at all-female Mary Baldwin College in Staunton, Va. The government and women's rights groups say, however, that it is not the equal of VMI's.

Both the Justice Department and VMI, joined by the state of Virginia, took the case to the Supreme Court. VMI and the state have asked the court to rule that they should have no constitutional duty to set up a separate women's program as the price of keeping VMI open only to males. They argue that the male-only policy is constitutional as is.

The VMI case was one of two moving through the courts to challenge state-financed military colleges that keep out women. The other involved the 2 1/2 -year legal skirmish over the no-female policy at The Citadel; that case is on hold pending the outcome of the VMI case.

Only eight justices will be on the bench for the VMI case. Justice Clarence Thomas has disqualified himself, probably because his son Jamal is in his final year as a VMI cadet. The challenge to VMI still would need the votes of five justices to succeed, since a 4-4 split would uphold the male-only admissions policy.

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