Some 30 years after the "sexual revolution" and the advent of
the women's movement, issues that used to be neglected or only
whispered about are increasingly demanding the attention of the
nation's most staid institution - the United States Supreme Court.
In greater volume and variety, cases related to gender, sexual
identity, and relations between the sexes are reaching the high
court. Their prevalence on the docket during the past two years
underscores how America's social and political waters are still
roiled by issues of sex and gender.
But the cases also show how courts and judges, from the lowest
to the highest, are often perplexed over how to weigh expanding
claims of freedom with strong moral claims.
"The court tends to be some handful of years behind society, and
now it is catching up," says Richard Paccele of the University of
Missouri in St. Louis, a Supreme Court analyst. "Traditionally, the
court would stay away from such cases, but state legislatures have
given it no choice."
Already this year, the high court has ruled in cases on abortion
clinics, "deadbeat" parents, and standards for prosecuting
sexual-harassment charges. It also left intact a lower-court ruling
that requires Brown University in Rhode Island, and now
universities across the US, to create equal opportunity for men and
women athletes. (For pending cases, see story at right.)
Last year, sex and gender were at the heart of the two most
important decisions of the term. In a historic Colorado case, the
justices ruled that gay men and women could not be denied
participation in state and local politics on the basis of their
homosexuality. (Colorado voters in a 1992 referendum had blocked
gay political efforts.) The court next struck down a 157-year-old
Virginia tradition by ruling that women could not be excluded from
the state's prestigious all-male Virginia Military Institute.
Today, moreover, authors of law school textbooks are struggling
to keep track of a new set of sex and gender issues, such as "same
sex" marriages. A court in Hawaii ruled that such marriages are
legal, and the case is pending before the Hawaii Supreme Court - a
likely stop-off before reaching the US Supreme Court.
"Sexual orientation is a developing area of the law," says Lee
Epstein of Washington University in St. Louis, co-author of
"Constitutional Law for a Changing America." "You look at the Ellen
DeGeneres issue on TV. It has become a mainstream question, and the
Supreme Court's docket is often a microcosm of the mainstream
issues important to the public."
The makeup of the court itself has a gender diversity thought
impossible 30 years ago. Two of the nine justices are women. Gender
and behavior became a national drama, moreover, in the 1991 Senate
confirmation hearing of Justice Clarence Thomas, who was accused of
unwanted sexual advances by a former federal employee, Anita Hill,
who worked for Mr. Thomas at the Equal Employment Opportunity
Commission during the Reagan administration.
WHETHER gender on the bench matters was illustrated early this
term in the case of an indigent mother whose daughter was adopted
by the father's new wife. …