WSW EDITORIAL
With the recent passage of the Reagan budget, the much-predicted hardships to fall on women, children, minorities, the elderly and the poor will soon become a reality. The recent rioting in Britain
News
Vol. 9, no. 2
by Mary Walsh
may well foreshadow the grim future of this country as a result of the new budget cuts.
Nor are things hopeful on the judicial front, especially for women. The U.S. Supreme Court in re-
CONTENTS
National
Everything You Must Know About Tampons.......6 Fire in the Rain.......
.8
Wage Discrimination...
.4
The Honor Quilt.......
Zap Brigade Update.......
.5
Black Feminism...
..9
Interview with Zap Brigade Member....
.5
Letters.........
.....2
San Jose Strike.....
.4
Local
Viewpoint.
.9
CWW: Handwriting, Not Handwringing.............3
Kathy Thomas Trial Update..
.3
Find It Fastest.....
..back cover
Cleveland Rape Crisis Center.....
..2
Classified Ads........
Features and Reviews
The Cancer Journals......
7
What's Happening.
cover photos by Jan McElwain-Bell (top)
and Jeanne Van Atta (bottom)
What She Wants
.15
......12-15
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Business Group
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Dianne Fishman
Julie Gress
Mary Redlinger
Editorial Group
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right @-1981
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Pat O'Malley
· Randi Powers Lesley Rogan Barb Silverberg Michele Vanderlip
41
cent weeks has decided several cases which reflect a subtle but distinct backward trend in enforcement of women's rights. And in the Ohio Supreme Court, judges in the Kathy Thomas case seem to have repudiated the whole idea of the "battered wife syndrome" as evidence of a woman's state of mind (see article on page 3 of this issue).
In the U.S. Supreme Court, three decisions made this spring signal that the Court is using a new and less stringent standard to determine whether a sexbased distinction is lawful. During most of the 1970's, the Court consistently ruled that a sex-based law could be upheld only if it was "substantially related to achieving an important governmental interest," and if a law that treated the sexes equally could not serve that interest as well as one that differentiated. Thus the burden was on the government to prove a compelling need to discriminate; if it could not, the statute fell. However, in recent decisions the standard used by the Court is whether men and women are "similarly situated" in a particular situation; if they are not, a sex-based law can be upheld whatever its discriminatory effects.
The most noteworthy case in which this new standard was used was Rostker v. Goldberg, decided June 25, which held that Congress may limit draft registration to men. Justice Rehnquist, writing for the 6-3 majority, did not consider the central issue of whether including women in the draft would hamper military effectiveness. Instead, the opinion stated that since by Federal law and military policy women are not eligible to serve in combat positions, men and women are not similarly situated for purposes of a draft or draft registration. He based this opinion on the dubious assertion that "the purpose of registration is to develop a pool of potential combat troops". The tortured logic of this position is obvious, since many functions in support of military units are now well performed by the 150,000 women volunteers currently on active service. As Justice Marshall pointed out in his dissent, the opinion "places its imprimatur on one of the most potent remaining public expressions of ancient canards about the proper role of women".
Other cases in which the "similarly situated" standard has been used recently concerned the upholding of a statutory rape law that punished only men for having sex with an underage partner, and one that held that a military pension cannot become part of the property settlement in a divorce. In the former case, the Court held that since only girls can become pregnant, they are not similarly situated to young boys; therefore the state can punish a man but not a woman for having relations with a teenager. Presumably, the purpose of the statute was to protect young people, not merely to avoid pregnancy in the young; thus the application of the "similarly situated" standard actually perverts the law. And in the military pension case, the negative effects clearly fall overwhelmingly on women dependents of military husbands.
The main problem with the "similarly situated" standard, if the Court continues to use it, is that the burden will shift to women to show why a sex-based distinction is not valid, rather than requiring the state to defend its validity. Since for various economic, social, physiological and other reasons women and men are not similarly situated in many areas of life, this change on the part of the Court signals an increasingly uphill judicial battle for women's rights. It is impossible to predict what impact the nomination and confirmation of Sandra O'Connor to the (continued on page 2)
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Heights,
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July-August, 1981/What She Wants/Page 1