The political and social context of the U.S. Supreme Court’s November 22, 1971, decision in Reed v. Reed is important. A proposed Equal Rights Amendment had been approved by the U.S. House of Representatives in August 1970 by a margin of greater than ten to one, 350–15, and again in October 1971 by a vote of 354–24. This proposed amendment stated, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The Reed decision followed upon the heels of this House vote by one month. In March 1972, the Senate was to vote for the ERA with near-unanimity, 84–8.
Other parts of government, too, were moving against gender discrimination in this period. President Lyndon B. Johnson issued an executive order in 1967 prohibiting sex discrimination by employers under federal contract, and in 1972 the Equal Employment Opportunity Commission was to acquire the power to sue sex-discriminating employers in federal courts. In May 1971, the California Supreme Court had declared sex classifications to be “suspect” under that state’s own equal protection clause and to require, therefore, “compelling justification.”
In short, opposition to gender discrimination was a strong trend when the U.S. Supreme Court moved in this same direction in Reed v. Reed. This case initiated a new approach to interpretations of the Equal Protection Clause on matters of gender discrimination. The Court in Reed abandoned its earlier willingness to accept as reasonable those justifications for sex discrimination in laws that amounted to “society believes women belong at home to care for the family, and the legislature is honoring this viewpoint”—an approach that had characterized decisions as recent as Hoyt v. Florida (1961).
Reed v. Reed concerned a marital dispute. Cecil and Sally Reed, now divorced, were competing to be appointed as administrator of their deceased son’s estate. According to Idaho law, if other qualifications for administrator were equal (such as, here, the qualification of being a parent), then “males must be preferred to females.” The probate judge appointed Cecil Reed the administrator, citing no grounds other than the command of this statute. Sally Reed appealed. The Idaho Supreme Court had justified the law with the explanation that men were (still) more commonly involved in business than women were, so it was reasonable to believe they, in general, would do a better job of administering an estate.
The U.S. Supreme Court unanimously held that, although the legislature and Supreme Court of Idaho believed it reasonable to classify women in this way, it was nonetheless “arbitrary” and thus not reasonable. The justices provided almost no explanation of their conclusion beyond the assertion, “To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.” This statement, while far from a thorough explanation of what the Court was thinking, nonetheless signaled strongly to attorneys familiar with the equal protection doctrine that state laws imposing sex discrimination were now going to need a far stronger burden of proof to withstand challenges under the Equal Protection Clause than they needed earlier.
Judith Baer, Women and the Law, vol. 2 (New York: Holmes & Meier, 2002); and Leslie F. Goldstein, Constitutional Rights of Women (Madison: University of Wisconsin Press, 1988).