Constitutional Aspects of Sex-Based Discrimination in American Law

American law, whether in the shape of legislation, court decisions, or administrative action, continues in many instances to accord men and women different treatment solely because of sex. Such differences in treatment have often been challenged in the courts as alleged violations of state or federal constitutional provisions. But, for the most part, these constitutional attacks have met with failure, leading to, among other things, persistent pressure for a federal constitutional amendment that would specifically prohibit legal discrimination based on sex (the so-called "equal rights" amendment). In recent years—no doubt partly due to a general rekindling of interest in the status of women in society and the emergence of positive corrective legislation in the field—constitutional challenges of laws that discriminate on grounds of sex have increased.

There are many indications in fact that reliance upon existing constitutional provisions as a basis for attacking many expressions of sex-based legal discrimination is no longer as fruitless an approach as it may have been in the past. The purposes of the present article are, therefore, three: (1) To describe and analyze leading decisions that have disposed of constitutional attacks upon laws that discriminate on the basis of sex; (2) To discern the current developments in this area, including a forecast of the shape of things to come; and (3) To consider the desirability vel non of the proposed equal rights amendment.