Washington — The US Supreme Court justices who will soon decide on the constitutionality of an all-male draft have built up a record of throwing out laws that discriminate between men and women.
In fact, this court, under conservative Chief Justice Warren E. Burger, has broken more ground in sex discrimination cases than any Supreme Court in history. Ironically, the court, which includes four justices picked by President Nixon to halt the judicial activism of the years of Chief Justice Earl Warren, instead forged ahead in this area.
The liberal Warren court, which gave the order to desegregate schools and defended the rights of black citizens, ruled on only one major sex discrimination case. In that case, the court backed a law that excluded women from juries. The ruling cited women's role as "the center of home and family life."
Now that the more "conservative" court has been operating 10 years, it has left the civil rights initiatives intact. But it has reversed the Warren court on sex discrimination. In 1975, it overruled the Warren court by striking down a Louisiana law calling for all-male juries.
With some exceptions, "the court has been rather strict in striking down all manner of sex discrimination," says A. E. Dick Howard, constitutional law professor at the University of Virginia. Far from cutting back on activism, the new court has been "perfectly willing to be activist in policing sex discrimination," he says.
In the past decade, the court has struck down an Idaho law that preferred male relatives to female when picking a court-appointed executor for estates. It threw out a Utah law setting different ages at which men and women become adults and an Oklahoma law setting different ages for men and women to purchase beer legally.
The court also has overturned an Alabama law setting a minimum height and weight for prison guards -- standards which meant that almost no woman would qualify.
But Professor Howard and other court watchers point out that the Supreme Court has not set an absolute rule that laws must treat men and women the same. In 1973 the court came close to ruling that any sex classification would have to undergo "strict scrutiny." But only four of the nine justices would go along with that ruling. So the standard has been established somewhere on a middle ground.
"It doesn't yield much predictability," says Howard, who adds that in sex discrimination cases it is more important to look at what the court does rather than what it says. And what it has done is strike down most gender classifications for the first time in the history of the Supreme Court, which had a century ago allowed Illinois to refuse to issue licenses to women to practice law.
Judith L. Lichtman, executive director of the Women's Legal Defense Fund, says that women's rights have advanced overall "with some glaring exceptions" under the Burger court. "We're winning a good number of our cases," she says, but she adds that the court does not accept the argument of women's groups that all sex classification is suspect.
Ms. Lichtman says that the all-male draft case, which is a challenge brought by several men in Philadelphia, presents a good set of facts to the high court. A three- judge federal panel already has ruled that drafting men and not women violates the constitutional guarantee of due process.
Professor Howard says that although recent cases "point toward striking down" the draft law, the Supreme Court may find a procedural argument to support it. Or the court could rule that "important government interests" make the all-male draft constitutional.