The Equal Rights Amendment: Governmental
Action and Individual Liberty
William Wayne Kilgarlin *
Banks Tarver**
I.
Introduction
Article I, section 3a of the Texas Constitution, our state's "equality
under the law" provision, is commonly called the Texas Equal Rights
Amendment (ERA). The amendment provides: "Equality under the law
shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative."! Adopted in 1972, the
Texas ERA is the newest of oUf state constitutional guarantees of individual rights. Following the passage and attempted ratification of the
proposed federal Equal Rights Amendment in the early 1970s, thirteen
other states have adopted similar equal rights amendments. 2 These state
constitutional amendments, like the Texas ERA, hold great promise for
the safeguarding of individual rights. Unfortunately, the Texas ERA's
usefulness in challenging the discriminatory conduct of both governmental and private actors is still relatively unexplored; thus, neither the
Texas courts nor private litigants have fully understood the scope of its
protection.
We propose that by conditioning the application of the ERA to
• Fonner Justice of the Texas Supreme Court; Adjunct Professor of Law, Texas Tech University; B.S. 1954, University of Houston; LL.B. 1962, University of Texas.
•• A.B. 1982, Harvard University; J.D. 1987, Boalt Hall School of Law (University of California, Berkeley).
The authors wish to thank H. Tobolowsky, M. Moynihan, L. Schneidau, and G. Shaw.
1. TEX. CaNST. art. I, § 3a.
2. These states include Alaska, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Pennsylvania, Virginia and Washington. See Tarr &
Porter, Gender Equality and Judicial Federalism: The Role ofState Appellate Courts, 9 HASTINGS
CaNST. L.Q. 919, 923 n.32 (1982); see also Comment, Equal Rights Provisions: The Experience
Under State Constitutions, 65 CALIF. L. REv. 1086, 1087-88 (1977) (discussing variety of state standards of review for cases of sex discrimination under state constitutional guarantees and the probable
impact of federal ERA on state laws); Note, One Small Word: Sexual Equality Through the State
Constitution, 6 FLA. ST. U.L. REV. 947, 947-48 (1978) (discussing impact of federal equal rights
amendment on the proposed Florida constitutional amendment prohibiting sex discrimination);
Note, State Equal Rights Amendments: Legislative Reform and Judicial Activism, 4 WOMEN'S RTS.
L. REP. 227, 227 (1978) (discussing the relationship between states that have constitutional provisions expressly providing for equal rights for men and women and those that do not); Annotation,
Construction and Application ofState Equal Rights Amendments Forbidding Determination ofRights
Based on Sex, 90 A.L.R.3d 158, 164 (1979) (discussing the equal rights provisions of 14 states).
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cases involving governmental conduct, courts unjustifiably and improperly limit the scope of the rights that the ERA affords the citizens of
Texas. As Professor Jennifer Friesen noted five years ago, "The possibility of imposing constitutional norms on private actors is potentially one
of the most far-reaching changes in constitutional law to be worked by
the state civil rights movement."3 Because the Texas ERA does not explicitly require state action4 before conduct is declared illegal, this Paper
argues that its protection extends to all individuals, whether the government is a participant or not. In Part II of this Paper, we examine the
historical background of the passage and adoption of the Texas ERA. In
Part III we review Texas ERA case law. We argue in Part IV that the
ERA bars unequal treatment by private and governmental actors alike.
Y'Ie conclude, in Part V, by proposing a standard for review of claims
brought under the Texas ERA-a standard that does not turn upon the
presence or absence of governmental conduct, but instead recognizes the
competing rights of the parties as determinative.
II.
The Women's Movement in Texas
A.
The Genesis of the Texas Equal Rights Amendment
The states' passage of equal rights amendments "reflect[ed] an important social and political movement in our society."5 In the period
between World War II and the close of the 1950s, Texas legislators introduced bills in each session aimed at.eliminating gender-discriminatory
state laws. 6 Legislators attempted, for example, to protect women's
rights by eliminating gender preferences in laws such as the propertyownership statutes. 7 Their 'efforts met with little success.
In response to the failed attempts in the Texas Legislature to equalize treatment of the sexes, Hermine Tobolowsky, a Dallas attorney and
women's rights advocate, drafted and urged upon the legislature a comprehensive constitutional amendment addressing sex discrimination. 8
The Texas Business and Professional Women's Clubs, a coalition of women's groups working for the adoption of an equal rights amendment,
3. Friesen, Recovering Damagesfor State Bills ofRights Claims, 63 TEXAS L. REv. 1269, 1277
(1985).
4. The terms "state action," "governmental action," and "governmental conduct" are used'
interchllIlgeab1y.
5. Williams, Equality Guarantees in State Constitutional Law, 63 TEXAS L. REv. 1195, 1213
(1985).
6. See Hughes, Legal Status of Women in Texas, The Texas Observer, Nov. 27, 1959, at 3, col.
4.
7. See Note, An Overview of the Equal Rights Amendment in Texas, 11 Haus. L. REv. 136,
136 (1973).
8. Telephone Interview with Hermine Tobolowsky (Sept. 22, 1989).
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strongly supported Tobolowsky.9 The proposed amendment was first introduced in the Texas Legislature in 1959. 10
'(he bill generated considerable controversy and met with little legislative success in the 1959, 1961, 1963, and 1965 sessions. In 1967, Senator Don Kennard from Fort Worth amended the proposal to include
race, color, creed, and national origin as protected statuses. l l Under
Senator Kennard's sponsorship, the proposed amendment passed the
senate. The house, however, refused to pass the bill. 12 The Texas ERA
did not obtain house approval for another four years. Finally, on April
27, 1971-after being rejected in 1967 and again in 1969-the Texas
ERA was passed by both the senate and house, ending more than a decade of legislative controversy. The proposed amendment still had to be
approved by the voters of Texas,13 and the ERA was placed on the November 1972 statewide ballot. 14 Before that election took place, however, another proposed equal rights amendment-this one to the federal
constitution-eame before the Texas Legislature.
B.
The Proposed Federal Equal Rights Amendment
The proposed federal Equal Rights Amendment was first introduced in Congress in 1923 15 by the National Woman's Party, the "militant wing of the suffrage movement."16 Thereafter, every session of
Congress considered the amendmentY It was not until March 22, 1972
that the amendment finally passed both houses. IS After some minor
drafting changes, the amendment read:
Section 1. Equality of rights under the law shall not be denied or
abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the
date of ratification.19
9. [d.
10. [d.
11. See Fort Worth Star Telegram, Mar. 21, 1967, at 14C, col. 3.
12. See Dallas Morning News, May 25, 1967, at 4A, col. 6.
13. See TEX. CONST. art. XVII, § 1.
14. See San Antonio Express, Apr. 28/ 1971, at 9A, col. 2.
15. See Mayo & Frye, The ERA: Postmortem 0/ a Failure in Political Communication, in
RIGHTS OF PASSAGE 76, 77 (J. Hoff-Wilson ed. 1986).
16. Pleck, Failed Strategies; Renewed Hop~, in RIGHTS OF PASSAGE, supra note 15, at 106, 106;
see generally Brown, Emerson, Falk, & Freedman, The Equal Rights Amendment: A Constitutional
Basis/or Equal Rights/or Women, 80 YALE L.J. 871, 884-85 (1971) [hereinafter Brown] (arguing
that a constitutional amendment is the only effective means to secure equal rights for women).
17. See Brown, supra note 16, at 886.
18. See Fry, Alice Paul and the ERA, in RIGHTS OF PASSAGE, supra note 15, at 8, 16.
19. 116 CoNG. REc. 9568 (1972).
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Congress gave the states a seven-year ratification deadline. 20 In Texas,
though, ratification came quickly. Governor Preston Smith had called a
three-day special session, on an unrelated issue, to begin on March 28,
1972.21 At the urging of women's rights advocates, legislators asked the
Governor to add ratification to the agenda. Governor Smith agreed, and
on March 30, 1972, Texas became the eighth state to ratify the amendment. The federal ERA passed the house by a vote of 133 to 9 and
passed the senate by a unanimous voice-vote. 22
Several factors explain the quick ratification of the ERA in Texas:
(1) key Texas political figures, induding the governor, lieutenant governor, and house speaker, supported ratification; organized political opposition was absent; the media did not stir up interest in the ratification
debate; and the legislative debate came with little advance notice and
long before the party primary elections, which meant that there was little
opportunity to organize a response. There were no floor debates and the
single public hearing lasted but twenty-five minutes. 23 Indeed, the ratification process generated such little public interest that one newspaper
columnist observed: "When the Equal Rights Amendment to the U.S.
Constitution was passed by Texas ... it raised about as much interest as
a sewer bond referendum. "24
Several years later, when the national debate stirred great passions,
political opposition to the ERA began to mobilize support in Texas. Opponents of the ERA made at least two serious attempts to rescind Texas's
ratification, although each effort foundered in committee. 2S Politicalopposition to the ERA, however, was significantly more effective on the
national level. In 1982, after a three-year extension of the deadline, the
ERA was officially defeated; it fell three states short of the thirty-eight
required for rat~cation.26
C.
Adoption of the Texas Equal Rights Amendment.
On November 7, 1972, soon after the Texas Legislature's ratification
of the proposed federal ERA, Texans voted overwhelmingly in favor of
20. See Fry, supra note 18, at 8. Three-fourths of the states, or 38 states, must ratify an amendment. See U.S. CaNST. art. V.
21. The special session was called to pass a new campaign finance law and highway legislation.
Sell J. BOLES, THE POLITICS OF THE EQUAL RIGHTS AMENDMENT 149 (1979).
22. See id. at 21.
23. See id. at 96, 152, 156-57, 175-76.
24. Northcott, Fighting the ERA, The Ladies Mobilize, The Texas Observer, Nov. 15, 1974, at
1, col. 1.
25. See J. BOLES, supra note 21, at 23.
26. See Pleck, supra note 16, at 107. Four states had voted to rescind ratification.
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the Texas ERA, adopting the amendment by a four-to-one margin. 27
III.
The Courts and the Texas ERA
There are relatively few appellate opinions that provide meaningful
interpretation of the Texas ERA; most of them mention it only in passing
or avoid it altogether. 28 In the few opinions that do address the Texas
ERA, reasoning has been muddled; these rulings have often confused the
federal fourteenth amendment with the Texas ERA.29
Nonetheless, in 1987 the Texas Supreme Court did manage to rule
on the standard of review for evaluating actions allegedly violating the
ERA.30 More significantly, the court opined that the ERA was intended
to have a meaning independent of that given federal and state due process and equal protection guarantees. 31 A review of Texas ERA case law
follows.
A.
Baby McLean: What Level ofScrutiny?
Perhaps the fIrst task facing the Texas judiciary following the passage of the Texas ERA was to determine what standard of constitutional
review courts should apply to discriminatory behavior in light of the
newly adopted amendment. This issue was especially compelling for women's rights advocates who had fought so hard for the passage of the
amendment,32 because federal sex-based equal protection analysis was
unsettled and offered, at most, an intermediate level of scrutiny and protection against discriminatory state action. 33
27. See Tex. S.J. Res. 16, 62d Leg., 1971 Tex. Gen. Laws 4129; THE CONSTITUTION OF THE
STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 19 (G. Braden ed. 1977).
28. Many courts have avoided substantive discussion of the ERA by holding instead that a
particular "disputed law ... applie[d] equally to men and women." Schoen, The Texas Equal Rights
Amendment After the First Decade: Judicial Developments 1978-1982,20 Hous. L. REV. 1321, 1367
(1983). For example, in the first published opinion referring to the ERA, the Dallas Court of Appeals held that a man as well as a woman may sue for breach of a promise to marry. Scanlon v.
Crim, 500 S.W.2d 554, 556 (Tex. Civ. App.-Dallas 1973, writ ref'd n.r.e.). Courts have summarily
dispensed with ERA claims in cases in which a party has failed to articulate a classification that
would call into play the provisions of the ERA. See, e.g., Barnes v. J.W. Bateson Co., 755 S.W.2d
518,520 (Tex:App.-Fort Worth 1988, no writ) (referring only to the "Texas constitutional guarantees of due process and equal protection," without quoting article I, § 3a, in upholding a ten-year
statute of repose for architects, engineers, and contractors).
29. See, e.g., Barnes, 755 S.W.2d at 521 (applying the rational relationship test, a test more
closely associated with the federal equal protection clause).
30. See In re Unnamed Baby McLean, 725 S.W.2d 696, 698 (Tex. 1987). The Baby McLean
court adopted a standard of strict scrutiny, holding that the Texas ERA should not yield to discriminatory state interests unless the "proponent of the discrimination can prove that there is no other
manner to protect the state's compelling interest." Id.
31. See id. at 697.
32. See Note, supra note 7, at 166-67.
33. See Craig v. Boren, 429 U.S. 190, 204 (1976) (invalidating an Oklahoma statute that prohibited the sale of low-alcohol beer to males under 21' years old and females under 18); Frontiero v.
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Three possible standards of review emerged from Texas courts and
constitutional scholars. First, in Finley v. State,34 the Court of Criminal
Appeals upheld a rape statute's different treatment of males and females,
reasoning that the statute was "rationally related to the furthering of a
legitimate state interest."35 The Finley court's standard of review-rational relation to legitimate state interests-provided even less protection
than the federal gender-based equal protection standard of substantial
relation to an important governmental purpose. 36 Although the Court of
Criminal Appeals later overruled the Finley reasoning in holding in Ex
parte Groves 37 that women as well as men are subject to prosecution for
statutory rape, the court failed to articulate a different standard of review. Rather, the Groves court simply interpreted the statute as applying
equally to men and women. 38
Second, the Texas ~ppellate courts adopted an alternative approach
in Mercer v. Board of Trustees 39 and In re Baby Girl S.4O In these cases
the courts subjected sex-based classifications to a strict or heightened judicial scrutiny.41 This standard is similar in characterization, if not in
application, to the strict-scrutiny standard of federal constitutional review applied in cases involving suspect classifications42 or the intermediate standard of scrutiny applied to quasi-suspect classifications.43 Oddly
enough, although purporting to apply heightened scrutiny, the Mercer
Richardson, 411 U.S. 677, 688 (1973) (invalidating an Air Force regulationorequiring husbands of
officers to prove dependency but giving wives dependency benefits automatically); Reed v. Reed, 404
U.S. 71, 75-76 (1971) (invalidating an Idaho statute that preferred males to females for administration of a decedent's estate). In this line of cases, the United States Supreme Court developed an
intermediate level of review for the examination of gender-based classifications. In Craig, the Court
held that "[t]o withstand constitutional challenge, ... classifications by gender must serve important
governmental objectives and must be substantially related to achievement of those objectives."
Craig, 429 U.S. at 197.
.
34. 527 S.W.2d 553 (Tex. Crim. App. 1975).
35. Id. at 555.
36. See Craig, 429 U.S. at 197.
37. 571 S.W.2d 888, 890-92 (Tex. Crim. App. 1978).
38. See id. at 892-93; see also Curtis v. State, 640 S.W.2d 615, 617 (Tex. Crim. App. 1982)
(declining an invitation to examine the constitutionality of the state sodomy statute); Kruger v.
State, 623 S.W.2d 386, 386-87 (Tex. Crim. App. 1981) (adhering to Groves in affirming a statutory
rape conviction).
39. 538 S.W.2d 201 (Tex. Civ. App.-Houston [14th Dist.] 1976, writ ref'd n.r.e.).
40. 628 S.W.2d 261 (Tex. App.-EastIand 1982, writ ref'd n.r.e.), vacated sub nom. Kirkpatrick v. Christian Homes, Inc., 460 U.S. 1074 (1983).
41. See Mercer, 538 S.W.2d at 206 (observing that "any classification based upon sex is a suspect classification, and any lower regulation that classified persons for different treatment on the
basis of their sex is subject to strictest judicial scrutiny"); In re Baby Girl s., 628 S.W.2d at 264
(upholding a sex-based classification that met the "compeIling reason" test established in Mercer).
42. See Korematsu v. United States, 323 U.S. 214, 216 (1944) (describing the standard of review of racial classifications). "
43. See Craig v. Boren, 429 U.S. 190, 197 (1976) (describing the standard of review of gender
classifications).
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and Baby Girl S. courts upheld the sex-based classifications.44
In Mercer, a male high-school student challenged the validity of a
•
public school hair-length regulation applicable to males only.45 The
Houston Court of Civil Appeals, Fourteenth District, noted that the federal circuit courts were divided on the standard to apply for claims of
unequal treatment based on gender. 46 More significantly, the court reaffirmed the importance of giving the Texas Constitution a meaning independent from that of the United States Constitution.47 Although the
court in Mercer fell short of holding that the Texas ERA prohibits gender-based discrimination without exception, the court nonetheless subjected the regulation to "strict judicial scrutiny."48 The court formulated
the following standard: A gender-based classification loses on constitutional grounds unless the proponent of the classification can show that it
is required by "(1) physical characteristics, (2) other constitutionally protected rights such as the right of privacy, or (3) other 'compelling reasons.' "49 The Mercer court's faithfulness to its announced standard,
however, was questionable. With little explicit analysis, the court found
that the regulation passed constitutional muster.
While this result may be explained by the court's unwillingness to
extend greater protection to this particular complaining party-who was
just a child in school50-the final holding is inconsistent with the standard established. A similar result was reached in Baby Girl s., in which
the court reviewed a gender-based distinction in the Texas legitimation
statute. 51 The statute provided that the father-but not the motherhad to satisfy a "best interest of the child" test before being recognized as
a parent.52 The Baby Girl S. court restated the standard set forth in Mercen holding that the legitimation statute's gender-based distinction satisfied the "other 'compelling reasons' " test, and found a compelling state
objective supported by the statute in promoting the best interest of children born out of wedlock.53
See In re Baby Girl s.. 628 S.W.2d at 264; Mercer, 538 S.W.2d at 206.
Mercer, 538 S.W.2d at 202.
See id. at 202-03.
See id. at 204.
Id. at 203.
49. Id. at 206.
50. "Living by rules, sometimes seemingly arbitrary ones, is the lot of children." Id.
51. See In re Baby Girl S., 628 S.W.2d 261, 263-64 (Tex. App.-Eastland 1982, writ ref'd
n.r.e.), vacated sub nom. Kirkpatrick v. Christian Homes, Inc., 460 U.S. 1074 (1983); TEX. FAM.
CODE ANN. § 13.21 (Vernon 1986 & Supp. 1990).
52. See TEX. FAM. CODE ANN. § 13.21 (Vernon 1986 & Supp. 1990); cf. In re A.C. & L.C., 758
S.W.2d 390, 393 (Tex. App.-Fort Worth 1988, no writ) (requiring a parent of either gender to
make a "best interest of the child" showing in a parental rights termination proceeding).
53. See Baby Girl s., 628 S.W.2d at 264.
44.
45.
46.
47.
48.
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Professor Rodric Schoen of Texas Tech University School of Law,
dissatisfied with the judicial reception. of the Texas ERA, proposed a
third approach. He observed that any analysis similar to the federal
analysis would inevitably involve a balancing of interests. Schoen believed that the balancing process was sure to present "a risk that the
unqualified constitutional guarantee of sex equality under [the] law
[would] suffer serious judicial erosion."54 Schoen proposed a "plain language" or "per se" approach. Under this approach, different treatment
on the basis of any of the enumerated characteristics would not merely be
suspect, but absolutely forbidden. 55
Three policy reasons arguably favor the plain language test: first,
the unqualified and specific guarantees of equality in the Texas ERA
should not be interpreted to provide simply for federal analysis (because
to do so would render the amendment of the state constitution a meaningless exercise); second, the plain language rule is a simpler test to apply
judicially, guaranteeing consistent results; and third, this rule mitigates
the potential for judicial erosion of the Texas ERA protections.56 In a
fascinating case, Texas Woman's University v. Chayklintaste,57 the Fort
Worth Court of Appeals appeared to apply something akin to the plain
language standard. In striking down a university rule requiring female
students to reside on campus but allowing male students to live off campus, the court rejected all the defenses of the university and found the
rule to be an unconstitutional denial of a right or privilege because of
sex. 58
The Texas Supreme Court resolved the standard-of-review debate in
In re Unnamed Baby McLean,59 reviewing the same gender-based distinction addressed in Baby Girl S. 60 In the opinion, written by Justice
Kilgarlin, the majority expressly declined to give the ERA an interpretation identical to that given Texas and federal due process and equal protection guarantees, citing Schoen's argument that to do so would render
the adoption of the 1972 amendment "an exercise in futility."61 The
court did not, however, adopt the "per se" or "plain language" standard
54. Schoen, supra note 28, at 1368; see also Schoen, The Texas Equal Rights Amendment in the
Courts-1972-1977: A Review and Proposed Principles ofInterpretation, 15 Hous. L. REV. 537, 553
(1978) (noting that "[s]tate courts remain free to accord greater protection for individual rights
under state constitutions and state laws than the United States Constitution requires").
55. See Schoen, supra note 28, at 1358.
56. See id. at 1359-60.
57. 521 S.W.2d 949 (Tex. Civ. App.-Fort Worth), rev'd on other grounds, 530 S.W.2d 927
(Tex. 1975).
58. Id. at 951. The University rescinded the rule following disposition by the Court of Appeals.
59. 725 S.W.2d 696 (Tex. 1987).
60. See id. at 697.
61. Id.
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recommended by Schoen. Rather than recognize a "per se" standard
that would automatically invalic4tte gender-based distinctions, the court
elevated sex to a suspect classification and subjected sex-based distinctions to strict judicial scrutiny.62 The court refused to establish a single,
hard-and-fast rule, declaring instead that "[o]ur Bill of Rights is not
made up of a series of one-dimensional rules, to be applied blindly, but
instead declares a guiding norm and principle to be applied and interpreted by the courts."63
In striking down the legislation at issue, the Texas Supreme Court
formulated the following constitutional standard for gender-based distinctions: The proponent of the discriminatory law or statute must show
that a compelling state interest exists and that no other state action to
protect the state's compelling interest is possible. 64 The court agreed that
the state had a compelling interest in encouraging unwed mothers to care
for their children properly; however, the court found that the state's interest could be protected without discriminating solely on the basis of
sex. 65 Justice Kilgarlin added that the same strict standard of constitutional review should also apply to the other classifications: race, color,
creed, and national origin.66
B.
Family Law, Criminal Law and Procedure, and Public Benefits
Texas courts have decided significant ERA cases in the areas of
family law, criminal law and procedure, and public benefits. Although
many of these decisions pre-date Baby McLean, they remain important
windows to the potential reach of ERA protections.
Family Law.-In numerous family law cases in addition to Baby
McLean and Baby Girl s., litigants have voiced ERA claims, most notably on issues involving unequal marital property division or unequal
child support obligations. 67 Reasoning that inequalities are based on fac1.
62. See id.
63. [d. at 698.
64. See id.
65. See id.
66. [d. ("Our reading of the Equal Rights Amendment elevates sex to a suspect classification:
Sex is clearly listed in the amendment along with other classifications afforded maximum constitutional protection."); see also Lucas v. United States, 757 S.W.2d 687, 705 n.2 (Tex. 1988) (phillips,
C.J., dissenting) (noting that strict scrutiny is applied pursuant to the Texas ERA, although the
equal protection clause does not automatically require heightened scrutiny).
67. See, e.g., Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1988) (ignoring a husband's contention that the trial court's award to his wife of 35-45% of his retirement benefits violated the Texas
ERA); Breeze v. Breeze, 707 S.W.2d 298,300-01 (Tex. App.-Fort Worth 1986, writ dism'd) (holding that a husband lacked standing to challenge an award of 55% of the couple's community property to the wife absent proof of actual discrimination by the trial court); Smith v. Smith, 651 S.W.2d
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tors other than sex, such as differing present and future economic pros~
pects,68 Texas courts have uniformly rejected inequity claims in this
context. 69 Some courts have, however, rel~ed on, or at least referred to,
the ERA in affirming the notion that men and women should be treated
equally with respect to all family law issues. Te.xas courts have eliminated gender bias in evaluating the duty to support children commensu~
rate with ability to pay support,70 measuring loss of consortium,71
making a selection of domicile,72 awarding attorney's fees in child cus~
tody cases,73 and permitting the choice of name upon marriage. 74
953,954 (Tex. App.-Fort Worth 1983, no writ) (reading the ERA in connection with § 4.02 of the
Texas Family Code and concluding that each parent has a duty to support minor children).
68. See Schoen, supra note 28, at 1323-25.
69. See, e.g., Breeze, 707 S.W.2d at 300 (holding that the husband lacked standing to challenge
an award of 55% of the couple's community property to the wife absent proof of actual discrimination by the trial court); Ulrich v. Ulrich, 652 S.W.2d 503, 504 (Tex. App.-Houston [14th Dist.]
1983, no writ) (recognizing that although the Texas Family Code and the ERA require both parents
to support their minor children, the parents are not required to contribute equally, but according to
ability to pay); Grandinetti v. Grandinetti, 600 S.W.2d 371, 372 (Tex. Civ. App.-Houston [14th
Dist.] 1980, no writ) (holding that the duty to support minor children is not based on mathematically equal contributions, but on the ability of each parent); Krempp v. Krempp, 590 S.W.2d 229,
230 (Tex. Civ. App.-Fort Worth 1979, no writ) (holding that the equal duty to support minor
children does not require equal financial contributions); Schecter v. Schecter, 579 S.W.2d 502, 506
(Tex. Civ. App.-Dallas 1978, no writ) (refusing to find that Texas's "just and right" property
division statute [Texas Family Code § 3.63] violates the Texas ERA); Lewallen v. Hardin, 563
S.W.2d 356, 357-58 (Tex. Civ. App.-Dallas 1978, no writ) (concluding that parents have an obligation to support minor children commensurate with their ability to do so); Lipshy v. Lipshy, 525
S.W.2d 222, 226-27 (Tex. Civ. App.-Dallas 1975, writ dism'd) (noting that the Texas ERA allows
recovery of attorney's fees in property settlement to either spouse); Friedman v. Friedman, 521
S.W.2d 11 I, 114-15 (Tex. Civ. App.-Houston [14th Dist.] 1975, no writ) (reading the Texas Family
Code's duty of support as imposing a duty based on ability to pay); Cooper v. Cooper, 513 S.W.2d
229, 234 (Tex. Civ. App.-Houston [1st Dist.] 1974, no writ) (concluding that the obligation to
support minor children is equal, though based on ability to pay); see also Sampson, The Equal Rights
Amendment and the Family Code,S TEX. TECH L. REV. 631, 642-43 (1974) (analyzing the constitutional defects of the Texas Family Code in light of the Texas ERA); Treece, The ERA and Texas
Marital Law, 54 TEXAS L. REV. 590, 596 (1976) (arguing for a gender-neutral construction of the
Texas Family Code support provision).
70. See White v. Adcock, 666 S.W.2d 222, 225 (Tex. App.-Houston [14th Dist.] 1984, no
writ); cf. D.W.L. v. M.J.B.C., 601 S.W.2d 475, 478 (Tex. Civ. App.-Houston [14th Dist.] 1980,
writ ref'd n.r.e.) (upholding the child support duty imposed by the Texas paternity statute without
separately discussing the ERA).
71. See Miller v. Whittlesey, 562 S.W.2d 904, 906 (Tex. Civ. App.-Tyler), aff'd on other
grounds, 572 S.W.2d 665 (Tex. 1978).
72. See Geesbreght v. Geesbreght, 570 S.W.2d 427,429-30 (Tex. Civ. App.-Fort Worth 1978,
writ dism'd).
73. See Perkins v. Freeman, 501 S.W.2d 424, 427-28 (Tex. Civ. App.-Beaumont 1973), rev'd
on other grounds, 518 S.W.2d 532 (Tex. 1974); see also Price v. Price, 732 S.W.2d 316, 319 (Tex.
1987) (abolishing the doctrine of interspousaI immunity for all causes ofaction); Jennings v. Wessely
Energy Corp., 720 S.W.2d 811, 813 (Tex. App.-Texarkana 1986) (observing that the repealed statute requiring a husband to join in conveyance of his wife's separate property would be unconstitutional under the ERA), rev'd, 736 S.W.2d 62,4, 627-28 (Tex. 1987) (holding that statute would have
been unconstitutional on federal and state equal protection grounds).
74. See Op. Tex. Att'y Gen. No. H-432 (1974).
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2.
Criminal Law and Criminal Procedure.-The Texas Court of
Criminal Appeals has considered the ERA in various contexts. In Ex
parte Tullos,75 a male challenged a statute's gender-based distinction allowing 17-year-old males convicted of drunk driving, but not 17-year-old
females convicted of the same offense, to be confined in a county jail.76
Although this case was decided eleven years prior to the Texas Supreme
Court's decision in Baby McLean, the court, relying on the federal equal
protection clause and with only passing reference to the ERA, held the
statute to be unconstitutionfll.77
3. Public Benefits.-Travis County District Judge Harley Clark relied on the ERA in 1984 to eliminate the exclusion of migrant farm and
ranch laborers from the Worker's Compensation Act,78 and again in
1985 to eliminate their exclusion from the Texas Unemployment Compensation Act. 79 The ERA claims in both cases rested on classifications
based on national origin. 80 The legislature amended both statutes to include farm and ranch laborers, thus making the underlying substantive
issues moot. 81 Although the Texas Employment Commission appealed
the unemployment compensation case on the issue of attorney's fees, 82
75. 541 S.W.2d 167 (Tex. Crim. App. 1976).
76. ld. at 168.
77. ld.; see also Ex parte Trahan, 591 S.W.2d 837, 839-40 (Tex. Crim. App. 1980) (interpreting
a statute governing juvenile CQurt jurisdiction in light of Tullos, holding the statute unconstitutional
to the extent that it treated 17-year-old males and females differently).
In Johnson v. State, 548 S.W.2d 700 (Tex. Crim. App. 1977), ten years before Baby McLean,
the court upheld a sex-based exemption from jury service. ld. at 703. The court concluded that the
statute was reasonable and the state had a legitimate interest in exempting women with children. ld.
Therefore, the jury exemption could survive a constitutional attack based upon federal and state
constitutional provisions, including the ERA. See id. The court, however, neglected to specifically
address the ERA claim. At any rate, even if the court did separately evaluate the ERA claim, it
applied the lowest level of scrutiny-rational basis review-and reached a result that it would not
have under the appropriate standard elucidated ten years later in Baby McLean. ld.; see also Boutwell v. State, 719 S.W.2d 164, 168-69 (Tex. Crim. App. 1985) (disallowing the use of a promiscuity
defense in a prosecution for homosexual activity with a minor, even though the defense is available
to an adult male accused of statutory rape of a female).
78. See Delgado v. Texas, No. 356714 (Dist. Ct. of Travis County, 147th Judicial Dist. of
Texas, Mar. 7, 1984), modified, (May 22, 1985). Judge Clark also cited article I, §§ 3, 19, and 29 of
the Texas Constitution.
.
79. See Camarena v. Texas Employment Comm'n, Nos. 369808 and 369808-A (Dist. Ct. of
Travis County, 201st Judicial Dist. of Texas), modified, (July 2, 1985 [No. 369808] and May IS,
1985 [No. 369808-A]).
80. Id.
81. See Act ofJuly 20,1984, ch. 33, § 2,1984 Tex. Gen. Laws 223 (codified at TEX. REV. CIV.
STAT. ANN. art. 8306, § 2(b) (Vernon Supp. 1990) (making the Workmen's Compensation Act applicable to certain seasonal farm and ranch laborers); Act of May 2, 1985, ch. 67, § I, 1985 Tex.
Gen. Laws 466 (codified at TEX. REv. CIV. STAT. ANN. art. 5221b-17(f)(8) (Vernon 1987) (extending unemployment compensation to migrant workers under specified conditions).
82. See Camerena v. Texas Employment Comm'n, 754 S.W.2d 149, 152 (Tex. 1988), aff'g in
part and rev'g in part 710 S.W.2d 665 (Tex. App.-Austin 1986).
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there is no published appellate opinion reviewing the statutes' constitutionality in light of the ERA. Nonetheless, Judge Clark's rulings are significant in revealing potential applications of the Texas ERA, especially
since federal court decisions have upheld similar exclusions by New York
and California statutes against federal constitutional challenge.83
c:
Remedies Under the ERA
Suppose a disputed policy is found to impermissibly classify based
on a protected status under the ERA. Should the court extend the denied benefits to the disfavored group or strike down the unconstitutional
provision or policy altogether? .
The Amarillo Court of Appeals had to make this choice in 1978. In
Vick v. Pioneer Oil Co., 84 a female employee sued her employer, who had
refused to pay her overtime wages. The employer's refusal contravened a
Texas law requiring employers to pay female-but not male-employees
overtime wages for hours worked over forty hours per week. After holding that the sex-based" statutory classification violated the ERA, the
Amarillo Court of Appeals did not extend the statutory benefits to male
employees, but instead denied all employees the discriminatory overtime
benefits. 85 Professor Schoen, who favors extending the benefits, opposed
the Vick result, arguing that "[t]he sex disfavored by the unconstitutional
sex-based classification should receive the benefits enjoyed by the favored
sex, unless substantial countervailing considerations justify a contrary result."86 Schoen contended that evenhanded rules are easier to apply and
also help to ensure that successful plaintiffs perform a valuable public
service for all Texans by challenging unconstitutional statutes and
policies. 87
D.
Governmental Action: The Meaning of "Under the Law"
With the exception of the thirteenth amendment,88 the guarantees of
83. See Doe v. Hodgson, 478 F.2d 537, 538 (2d Cir. 1973) (concluding that "although pl~in­
tiffs' basic equal protection claim merits the closest judicial attention, ... under applicable precedent
we should not now engage in that pursuit"); Romero v. Hodgson, 319 F. Supp. 1201, 1203 (N.D.
Cal. 1970) (holding that the exclusion was rational under the "loose standards" that the Supreme
Court has adopted for testing regulations of the economy or the public health against equal protection challenges) (citing Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 (1937)), aff'd mem.,
403 U.S. 901 (1971).
84. 569 S.W.2d 631 (Tex. Civ. App.-Amarillo 1978, no writ).
85. [d. at 643.
86. Schoen, supra note 28, at 1335.
87. See id. at 1335-37.
88. The thirteenth amendment's prohibition against slavery applies to both governmental and
private action. See J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW § 14.7 (3d ed.
1986) [hereinafter J. NOWAK].
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individual liberty found in the United States Constitution and its amendments protect against only governmental or state action. 89 The fifth and
fourteenth amendments, for example, guarantee an individual's right to
due process of the law and equal protection of the laws against both federal and state governmental action. 90
Three Texas courts of appeals addressed the issue of whether the
Texas ERA safeguards rights only in the face of governmental action. In
Junior Football Association of Orange v. Gaudet 9I and Lincoln v. MidCities Pee Wee Football Association,92 the plaintiffs were young girls who
wanted to participate in organized football restricted to boys. The defendants in both cases were private, nonprofit corporations operating
junior football leagues in Texas. The courts reached identical results in
not requiring the independent leagues to admit the female competitors. 93
In each case the courts accepted the argument that some degree of state
action is required for Texas ERA safeguards to apply.
In Gaudet, the court of appeals reversed a trial court's temporary
injunction permitting the plaintiff's entry into the league. 94 Citing federal precedent requiring state action under the fourteenth amendment,
the Gaudet court wrote: "The words 'under the law' in the [first] article
.of the Texas Constitution require that the discrimination complained of
is state action or private conduct that is encouraged by, enabled by, or
closely interrelated in function with state action."95 Gaudet argued that
"state action" was present because the teams practiced on public school
grounds and played games in a city-owned park. 96 The court disagreed
in summary fashion by "not regard[ing] this as state action, or private
conduct closely interrelated in function with state action."97 Rather than
describe in greater detail the standard employed, the co~rt wrote that "it
is not necessary or appropriate in this case to undertake a precise delineation of the legal rule as it may operate in circumstances not now before
tb.e court."98
89. See L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 18-1, at 1688 (2d ed. 1988).
90. See U.S. CoNST. amends. V, XIV; Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (incorporating within the due process clause of the fifth amendment the equal protection guarantee of the
fourteenth amendment for the purpose of reaching conduct of federal government).
91. 546 S.W.2d 70 (Tex. Civ. App.-Beaumont 1976, no writ).
92. 576 S.W.2d 922 (Tex. Civ. App.-Fort Worth 1979, no writ).
93. Gaudet, 546 S.W.2d at 71 (holding that evidence that a football association was a nonprofit
corporation and that players practiced on school grounds was insufficient to find state action); Lincoln, 576 S.W.2d at 926 (same).
94. Gaudet, 546 S.W.2d at 71.
95. ld.
96. See id.
97. ld.
98. ld.
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Although it reached the same result, the Lincoln court provided
more analysis than did the Gaudet court. Lincoln first argued that the
Texas ERA did not require state action. Focusing upon the fact that the
state action requirement originated from the fourteenth amendment, she
argued that the Texas ERA, unlike the fourteenth amendment, is not
specifically directed to the state or any entity, and she suggested that the
doctrine of governmental participation was therefore not necessarily applicable to Texas ERA analysis. 99 The court posed the following question: "Basic to this issue is the inquiry of what intent the legislature and
citizens of this state had when the amendment was adopted and ratified.... [W]hat degree of governmental involvement or activity, if any,
did they intend to require before the ERA would be applicable?"1°O
The Lincoln court characterized its decision as taking the middle
course between two extremes-extensive governmental involvement and
zero governmental involvement. Choosing neither to limit the amendment's applicability to discrimination "via a statute, ordinance, or a official policy,"101 nor to apply the amendment's protections to purely
private conduct,102 the court construed "under the law," as set forth in
Gaudet, to mean state action or private conduct encouraged by, enabled
by, or closely interrelated with state action. 103 Although it purported to
rest its decision on an understanding of the intent of the legislature and
citizens concerning the Texas ERA, the Lincoln court offered little concrete analysis of the ERA's intent. Instead, the court simply wrote that
it "[could not] believe" that in enacting the ERA provision the legislature and citizenry intended to regulate private conduct. 104 Therefore,
"under the law" indicates equality only in the area of governmental and
public affairs. !Os The court wrote:
We do not believe "under the law" covers purely private conduct. We do not believe the Texas Era proscribes purely private sex
discrimination. It is our opinion that the legislature and citizens of
this state desired to distill the myriad of federal doctrines concerning discrimination into a single simplified guarantee of sexual
equality in governmental and public affairs. We cannot believe
that by enacting the amendment they intended to have their private conduct regulated by the state. Private sex discrimination in
many instances could be based upon what the individual perceives
99. See Lincoln v. Mid-Cities Pee Wee Football Ass'n, 576 S.W.2d 922, 924 (Tex. Civ. App.Fort Worth 1979, no writ).
100. ld.
101.' ld. at 925.
102. ld.
103. ld.
104. ld.
105. See id.
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to be the proper role for men and women in society. Thus the
private conduct could be considered an expression of the indivi~­
uars social, moral, cultural, and religious beliefs. While rea~onable
minds can and do differ, and many are quite emotional on this
subject, it is certainly not for this court to hold that such private
conduct is illegal. absent a clear expression of intent from the legislature and the citizens of this state. 106
The third and most recent governmental-action case, Cedillo v.
Ewlin Enterprises, Inc., 107 involved sexual discrimination in an employment context. The trial court granted summary judgment for the defendant on all claims, including plaintiffs' ERA claims. lOB Mter reviewing
Gaud;!! and Lincoln, 109 the appellate court affIrmed the trial court's summary judgment, holding that the Texas ERA is not applicable to activities involving purely private discrimination. 11O Originally, the Texas
Supreme Court granted writ of error in Cedillo, indicating that at least
four justices were willing to review the court of appeals' opinion. However, for reasons not made known, the granting of the writ was subsequently set aside. II I
These three cases reveal some of the problems encountered when
courts interpret state bills of rights. Without any apparent hesitation, the
Texas courts deferred to federal precedent. Although federal precedent
can be informative to state constitutional discourse, state constitutional
guarantees may confer broader rights or may be written to serve different
purposes. By simply deferring to federal precedent, state courts may inadvertently deny the independent meaning intended for our state constitutional protections.
IV.
The Texas ERA: Beyond Purely Governmental Conduct
Application of the federal state-action doctrine to review ERA cases
is unjustified and unwise. Three principal reasons lead us to this conclusion. First, a review of the ERA's text, the legislative intent underlying
its drafting and passage, and public expectations at the time of its adoption convihce us that the ERA imposes no governmental action requirement. Second, the purposes served by the federal state-action doctrine
are not at all pertinent to state constitutional discourse. Third, even assuming incorporatio"n of federal state-action inquiry is appropriate, this
106. Id.
107. 744 S.W.2d 217 (Tex. App.-eorpus Christi 1987), writ denied per curiam, 756 S.W.2d 724
(Tex. 1988) (holding that the writ of error had been improvidently granted).
108. Id. at 217-18.
109. See id. at 218-19.
110. Id. at 219.
111. 756 S.W.2d 724 (Tex. 1988).
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inquiry, as courts purport to engage in it, is incoherent and obscures the
balancing of rights that actually underlies the judicial decision-making
process.
A.
The Texas ERA: Text, Legislative Intent and Public Expectations
The Texas ERA insures "[e]quality under the law."1l2 Texas courts
have relied on this language to impose a state action requirement similar
to that required by the fourteenth amendment. II3 As an· alternative,
however, "under the law" could be read to mean that denial or abridgement of equality is unlawful. Had the legislature and citizenry intended
to create a governmental-action requirement, the drafters could have expressly stated their intentions. For example, the proposed federal ERA,
as ratified by the Texas Legislature, provides that "[e]quality of rights
under the law shall not be denied or abridged by the United States or any
State on account of sex." 114 The words "under the law" in the proposed
federal amendment do not denote a requirement of state action; rather,
the state action requirement is imposed by the words "by the United
States or any State."
Other states' equal rights amendments explicitly require governmental action. For example, Colorado's ERA provides that "[e]quality of
rights under the law shall not be denied or abridged by the State of Colorado or any of its political subdivisions on account of sex."II5 Similarly,
the New Hampshire ERA provides that "[e]quality of rights under law
shall not be denied or abridged by this state . ... "116 If courts interpret
the "under the law" language found in the Colorado and New Hampshire constitutions to have the same meaning as that given the identical
language by Texas courts, then the italicized portions are meaningless
surplusage.
The fourteenth amendment imposes a governmental-action requirement, mandating, "[N]or shall any state deprive any person oflife, liberty,
or property, without due process oflaw; nor deny to any person within its
jurisdiction the equal protection of the laws."117 Like the Colorado and
112. TEX. CONST. art. I, § 3a.
113. See, e.g., Cedillo, 744 S.W.2d at 218-19 (concluding that the Texas ERA is not applicable to
activities involving purely private discrimination); Lincoln v. Mid-Cities Pee Wee Football Ass'n,
576 S.W.2d 922, 924 (Tex. Civ. App.-Fort Worth 1979, no writ) ("We do not believe 'under the
law' covers purely private conduct.").
114. Brown, supra note 16, at 872 (emphasis added).
115. COLO. CONST. art. II, § 29 (emphasis added). The Colorado ERA was adopted on November 7, 1972, the same day Texas adopted the Texas ERA. See id.; TEX. CONST. art. I, § 3a.
116. N.H. CONST. art. 2 (emphasis added).
117. U.S. CONST. amend. XIV (emphasis added).
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New Hampshire ERAs, the fourteenth amendment explicitly singles out
state action as the conduct to be restricted.
Therefore, had the Texas drafters intended to impose a state action
requirement, they most likely would have drafted the Texas ERA in the
following manner: "[e]quality under the law shall not be denied or
abridged by the State of Texas or any of its political subdivisions because
of sex, race, color, creed, or national origin."
A response to this observation might be that there was no need to
include the language "by the State of Texas ...," because constitutions
by their nature limit governmental power and authority. While this may
be true of some other state constitutions, and is generally true for the
federal constitution, it is certainly not true of the Texas Constitution.
The Texas Constitution does not speak solely in terms of proscriptions
on governmental authority; instead, it affIrmatively recognizes the inalienable or natural rights of the citizenry. The Texas Constitution speaks
of the following rights as natural, inalienable, or indefeasible: Political
power-"[a]ll political power is inherent in the people, and all free governments are founded on their authority";118 equal rights-"[a]ll free
men, when they form a social compact, have equal rights";119 freedom of
worship-"[a]ll men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences...."No
human authority ought, in any case whatever, to control or interfere with
the rights of conscience in matters of religion";120 freedom of speech"[e]very person shall be at liberty to speak, write or publish his opinions
on any subject";121 due course of law-"[n] 0 citizen of this state shall be
deprived of life, liberty, property, privileges or immunities, or in any
manner disfranchised,· except by the due course of the law of the
land";122 and even reform of government-"[t]he faith of the people of
Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such
manner as they may think expedient."123
The Texas ERA fits within this constitutional structure, because,
unlike the United States Constitution, which speaks in negative terms
and proscribes governmental conduct, the Texas Constitution affirmatively grants liberties and rights to the citizenry. Thus, the seemingly
118.
119.
120.
121.
122.
123.
TEX: CONST. art. I, § 2.
[d. § 3.
[d. § 6.
[d. § 8.
[d. § 19.
[d. § 2.
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radical contention that the Texas ERA applies to more than governmental conduct is actually no more radical than the concept of positive rights
underlying the entire Texas Bill of Rights.
There is little preserved legislative history for the Texas ERA.
Floor debates and committee hearings were not tape recorded as they are
now. Committee hearing minutes do not provide much insight into the
substantive discussion of the proposed amendment. Hermine Tobolowsky, the drafter of the amendment and its principal lobbyist, attended
every significant legislative discussion of the Texas ERA, and she reports
that the scope of the provision was hotly debated. 124 Senator Kennard,
who sponsored the Texas ERA in the senate and participated in extensive legislative debate on the proposed amendment, has testified:
The purpose of the Texas Equal Rights Amendment, as understood at the time of its adoption by the Texas legislature and the
Texas public, was to abolish discrimination-both public and private. Any other interpretation would deny the Texas ERA the impact that was intended by the legislature and the voters. 125
In connection with the 1972 general election, the Texas Legislative
Council, the bill-drafting arm of the legislature, issued a report on the
proposed Texas ERA.126 The report clearly envisioned not only an
amendment to eliminate discriminatory statutes but also one reaching
private conduct. "The proposed amendment to the Texas Constitution,"
according to the report, "is consistent with the 14th Amendment to the
United States Constitution and The Civil Rights Act [of 1964J, but is
designed expressly to provide protection which supplements the federal
guarantees of equal treatment. "127 The Civil Rights Act of 1964 covers
private discrimination.
The report on the ERA advocated a broad equal rights protection
fIrmly embedded in a constitutional framework. In analyzing the arguments for passage of the Texas ERA, the report stated: "Discrimination
exists in many fIelds, and only a comprehensive equal rights amendment
can change completely the status quo";128 and, "[t]he protection afforded
by constitutional guarantees is more effective than statutory prohibitions
124. Telephone Interview with Hermine Tobolowsky (Sept. 22, 1989).
125. Affidavit of Don Kennard, submitted as exhibit to amicus brief of Texas Civil Liberties
Union; Cedillo v. Ewlin Enters., Inc., 744 S.W.2d 217 (Tex. App.-Corpus Christi 1987), writ denied per curiam, 756 S.W.2d 724 (Tex. 1988).
126. See TEXAS LEGISLATIVE COUNCIL, 14 PROPOSED CoNSTITUTIONAL AMENDMENTS ANALYZED: ANALYSES OF PROPOSED CONSTITUTIONAL AMENDMENTS FOR ELECTION NOVEMBER 7,
1972 (1971).
127. [d. at 24 (emphasis added).
128. [d.
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and the repeal or ~endment of discriminatory statutes."129
Further comparison of the Texas ERA to the proposed federal ERA
is useful. The proposed federal ERA, like the fourteenth amendment,
was created to proscribe discriminatory governmental action. 130 Just as
the fourteenth amendment's reference to "State" denotes state government and all subdivisions thereof, the proposed federal ERA would have
regulated the Texas state government and all subdivisions thereof. Thus,
as to sex discrimination, the Texas ERA, if it imposes a state action requirement similar to the fourteenth amendment's state action requirement, offers no greater protection than that afforded by the proposed
federal ERA.
If the Texas ERA encompasses only the governmental conduct
reached by the more familiar provisions such as the federal fourteenth
amendment and article I, section 3 of the Texas Constitution, then the
ERA can be given independent meaning in only two ways. The first is
the "plain language" or "per se" approach advocated by Professor.
Schoen.131 The Texas Supreme Court, however, rejected Schoen's test in
Baby McLean. 132 Second, challenged statutes could be subjected to the
equivalent of federal strict scrutiny. The Texas Supreme Court accepted
this proposition in Baby McLean. 133 This approach would eievate sex to
a protected status comparable to race in federal analysis, but it would
deny any independent meaning to the Texas ERA with regard to discrimination based on race, color, creed, or national origin.
Comparison with. certain statutory enactments, such as Title VII of
the Civil Rights Act of 1964134 and a Texas statute, article 5221k,13S both
of which extend protection from employment discrimination to private
employees, leads some to argue that reading the Texas ERA to reach
private conduct is unnecessary. But statutory enactments differ in nature
from constitutional provisions. The latter have an aura of permanence
that is lacking in the former. Statutes are easily repealed; constitutional
provisions are more difficult to revise. As proponents of the proposed
129. ld. In considering the ERA in 1965, Representative Clayton offered the following amendment to the ERA: "This Amendment shall not preclude any individuals or organizations from
restricting membership in any organization, club or other association based solely on sex." H.J. OF
TEX., 59th Leg., Reg. Sess. 377 (1965). The house tabled this amendment, but the fact that Representative Clayton offered it may suggest that many legislators looked to the Texas ERA as reaching
beyond governmental conduct. Other states, such as Montana, draw a distinction between social
and other non-governmental conduct. See MONT. CONST. art. II, § 4.
130. See Brown, supra note 16, at 905-07.
131. See Schoen, supra note 28, at 1359-60.
132. See In re Unnamed Baby McLean, 725 S.W.2d 696, 698 (Tex. 1987); supra notes 59-66.
133. See Baby McLean, 725 S.W.2d at 698.
134. 42 U.S.C. § 2000e (1982 & Supp. V 1987).
135. TEX. REV. CIV. STAT. ANN. art. 5221k (Vernon 1987 & Supp. 1990).
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federal ERA urged: "An unambiguous mandate with the prospect of
permanence is needed to assure prompt compliance."136 Also, existing
civil rights statutes and the Texas ERA are not coterminous, even assuming both reach private conduct. Title VII and article 5221k apply only in
the employment context and permit discriminatory treatment based on
religion, sex, or national origin as long as these classifications can be
shown to be bona fide occupational qualifications necessary to the normal operation of the particular business enterprise. 137 In addition,
neither statute applies to employers with less than fifteen employees. 138
Furthermore, both statutes apply to governmental employment; therefore, they already overlap with the Texas ERA to some extent.
Public expectations concerning the Texas ERA are difficult, if not
impossible, to gauge. To be sure, public debate over the proposed federal
amendment influenced public expectations concerning the Texas
ERA.139 Nonetheless, is it not plausible that Texans envisioned the
Texas ERA to be a far-reaching proscription of discrimination without
regard to governmental action? To simply conclude, as did the Lincoln
court, that the legislature and citizenry would not have so intended, is
purely speculative and avoids the question.
B.
Federal State Action Inquiry and State Constitutional Discourse
Commentators generally identify two principles served by the federal state action doctrine: federalism and separation of powers. 140 As to
federalism, the federal state action doctrine "preserves the essential role
of state government in the federalist system" by guaranteeing "the independent police power of state government to regulate private civil liberties."141 The United States Supreme Court explained this notion in the
Civil Rights Cases:
Such [federal civil rights] legislation cannot properly cover the
136. Brown, supra note 16, at 883-84.
137. See 42 U.S.C. § 2000e (1982 & Supp. V 1987); TEX. REv. CIV. STAT. ANN. art. 5221k,
§ 5.07(a)(1) (Vernon 1987).
.
138. See 42 U.S.C. § 2000e (1982 & Supp. V 1987); TEx. REv. ClV. STAT. ANN. art. 5221k,
§ 2.01(5) (Vernon 1987 & Supp. 1990).
139. See Case Developments-Texas ERA, 4 WOMEN'S RTS. L. REp. 51, 53-54 (1977).
140. See, e.g., L. TRIBE, supra note 89, at 1691 (noting that the sttlte action doctrine reinforces
federalism and separation of powers, the two chief principles of division that organize our constitutionally created governmental structure); Phillips, The Inevitable Incoherence ofModern State Action
Doctrine, 28 ST. LoUIS U.L.I. 683, 723 n.208 (1984) (asserting that the state action doctrine serves
federalism and separation of powers because of the doctrine's ability to limit federal judicial power);
Skover, The Washington Constitutional "State Action" Doctrine: A Fundamental Right to State Action, 8 U. PUGET SOUND L. REV. 221, 250-54 (1985) (underscoring that the state action doctrine
advances two instrumental values related to issues ofjusticiability in federal courts: federalism and
separation of powers).
141. Skover, supra note 140, at 250.
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whole domain of rights appertaining to life, liberty and property,
defming them and providing for their vindication. That would be
to establish a code of municipal law regulative of all private rights
between man and man in society. It would be to make Congress
take the place of State Legislatures and to supersede them. 142
As to separation of powers, the federal state action doctrine "aims to
secure the constitutional separation of powers among national governmental actors."143
Neither federalism nor separation o( powers, however, is at all relevant to state constitutional discourse. l44 Plainly, state sovereignty is not
threatened by applying state constitutional norms to behavior considered
non-governmental under federal inquiry. 145 Moreover, the separation-ofpowers concerns about the federal judiciary are not nearly as compelling
on a state level, because state court judges are politically accountable for
their actions in developing civil rights policy:146 Texas state court judges
are elected and their decisions are more readilY subject .to political modification by the legislature. Furthermore, the constitutional amendment
process is more available on a state level. Finally, the legislature drafted
and passed the Texas ERA intending the amendment to be "self-operative."147 the legislature therefore envisioned that Texas courts would
construe and apply the amendment without further legislative
enactment.
Thus, the primary purposes underlying the federal state action doctrine do not exist and are not served at our state level. One aspect of the
federal state action doctrine does apply to state constitutional discourse:
the doctrine operates to preserve "a 'free zone' within which individuals
can act without encountering constitutional checks."148 Even assuming
this to be a laudable outcome, however, federal state action inquiry does
not achieve this result in a principled, meaningful way. As we urge in the
next section, by focusing on some "sufficient quantum of state connections to a particular activity,"149 federal courts obscure the balancing of
rights that underlies judicial state action decision making-a balancing
142. 109 U.S. 3, 13 (1883).
143. Skover, supra note 140, at 251.
144. Professor Skover makes this argument with respect to the Washington Constitution. See id.
at 254. He contends that federal state action doctrine has no relevance to Washington state constitutional analysis.
145. See id. at 256-57 (arguing that the federalism rationale underlying the state action doctrine
is inapposite where, as in Washington, subordinate political units lack sovereignty).
146. See id. at 257-59 (arguing that the separation-of-powers rationale supporting the state action doctrine lacks merit where judges are elected and therefore judicial invalidation of state legislation is no more countermajoritarian than a gubernatorial veto).
147. TEX. CONST. art. I, § 3a.
148. Phillips, supra note 140, at 723-24.
149. J. NOWAK, supra note 88, at 448.
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process that may have real and meaningful application to state constitutional discourse. ISO
c:
Balancing Rights: "State Action" and the United States
Constitution
An aggrieved party's contention that the actions of an alleged
wrongdoer have violated constitutionally guaranteed rights requires that
competing values be reconciled: the aggrieved party stresses the importance of the freedoms set out in the federal constitution, and the alleged
wrongdoer counters with the need for individual freedom and discretion
to make certain private choices. 151 Traditional state action analysis concerns itself with the nexus between the actions of the alleged wrongdoer
and the government. If the two are sufficiently close, then the precepts
of the Constitution outweigh the individual freedom of the alleged
wrongdoer. lS2 When the nexus is not sufficiently close, the dictates of
the federal constitution do not intrude under a traditional analysis. ls3
Conventional analysis purports to derme some "minimum quantum
of state activity,"ls4 yet the boundary-or range of boundaries-between governmental action and private conduct is not clearly defined. A
detailed examination of this area of law is beyond the scope of this Paper;
nonetheless, a few observations bear mentioning. First, if the alleged
wrongdoer is engaged in the exercise of governmental functions, then the
alleged wrongdoer's freedom and discretion are subject to constitutional
limitations. ISS In this context, the government "cannot free itself from
the limitations of the Constitution in the operation of its governmental
functions merely by delegating certain functions to otherwise private individuals."ls6 Alternatively, the government may imbue the actions of
the alleged wrongdoer with state action by commanding or encouraging
such private actions. This kind of governmental involvement may take
the form of state legislation, 157 judicial decision,ls8 or executive action. ls9
150. See infra note 168.
151. See J. NOWAK, supra note 88, at 422.
152. See id. at 523.
153. See id.
154. Glennon & Nowak, A Functional Analysis of the Fourteenth Amendment "State Action"
Requirement, 1976 SuP. Cr. REv. 221, 232.
155. See, e.g., Marsh v. Alabama, 326 U.S. 501, 508-10 (1946) (holding that a privately owned
company town could not prevent Jehovah's Witnesses from distributing leaflets within town boundaries because the town was subject to the limitations of the first and fourteenth amendments).
156. J. NOWAK, supra note 88, at 426.
157. See, e.g., Peterson v. City of Greenville, 373 U.S. 244, 247-48 (1963) (holding that a restaurant manager's decision to exclude black patrons from a lunch counter was dictated to a "significant
extent" by a local ordinance and therefore was state action).
158. See, e.g., Shelley v. Kraemer, 334 U.S. 1,20 (1948) (holding that state judicial enforcement
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Other mutual contacts between the government and the alleged wrongdoer may also be sufficient to constitute state action. These contacts include extensive regulation by the government of the alleged
wrongdoer,l60 direct aid or a subsidy from the government to the alleged
wrongdoer,161 and other broad economic or multiple physical contacts
between government and the alleged wrongdoer. 162
No formal, uniform standard has emerged from the United States
Supreme Court's state action cases; instead, the Court conducts its state
action inquiry on a case-by-case basis by "sifting facts and weighing circumstances."163 In the oft-quoted words of Professor Charles Black, the
state action doctrine remains "a conceptual disaster area."I64 The Court
determines both the activities that constitute public functions and the
other forms of governmental encouragement, commandment, or involvement that are sufficient to constitute state action; both endeavors are
highly problematic because they are vague and can not be duplicated.
"[T]here are no generally accepted formulae for determining when a sufficient amount of governmental action is present in a practice, thus justifying subjecting the practice to constitutional restraints."16S
of private agreements to exclude persons of a designated race or color from the use or occupancy of
real estate violates the fourteenth amendment). Professor Schoen relies on Shelley to urge an expanded view of governmental action under the Texas ERA. He argues that all judicial orders approving of private actions are sufficient to constitute state action. See Schoen, supra note 54, at 57682. Under this view, virtually any private relationship or activity could be challenged under the
Texas ERA. Professor Schoen, however, does not adequately deal with the criticism engendered by
the Shelley case, a case that has troubled state action scholars for years. See. e.g. , Wechsler, Toward
Neutral Principles o/Constitutional Law, 73 fuRV. L. REv. 1,29-31 (1959) (arguing that the legal
recognition of the freedom of the individual who enters into a private restrictive covenant is no more
state action than the law's vindication of the privacy of property against a trespasser). More importantly, Professor Schoen fails to view federal state action inquiry in its entirety. As addressed in the
text that follows, a broader analysis of federal state action inquiry reveals not only the falsity of
traditional state action inquiry but also a principled approach to this issue that is more readily
adaptable to state constitutional debate.
159. See. e.g., Lombard v. Louisiana, 373 U.S. 267, 273-74 (1963) (holding that a mayor's public
announcement that "sit-in" demonstrations would not be allowed violated the fourteenth
amendment).
160. See. e.g., Public Utils. Comm'n v. Pollak, 343 U.S. 451, 462 (1952) (deciding that the radio
service provided by a street railway company in its streetcars and buses was subject to the restrictions of the first and fifth amendments, by virtue of the regulatory supervision of the company by an
agency authorized by Congress).
161. See, e.g., Norwood v. Harrison, 413 U.S. 455, 463 (1973) (holding that a state is forbidden
to indirectly subsidize private discrimination by providing free textbooks to students attending
schools that practice racial discrimination).
162. See. e.g, Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-26 (1961) (concluding
that the private operator of a restaurant in a parking building that was built with state funds and
operated by a state agency was obligated to comply with the equal protection clause).
163. Id. at 722.
164. Black, The Supreme Court, 1966 Term-Foreword: "State Action." Equal Protection. and
Colifornia's Proposition 14, 81 fuRV. L. REv. 69, 95 (1967).
165. J. NOWAK, supra note 88, at 448.
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Insightful federal state action commentary should recognize that the
incoherence of traditional state action inquiry is inevitable. The traditional concept of state action is unitary: "the only issue is whether sufficient state contacts do, or do not, exist."166 Recent commentary,
however, asserts the impossibility of achieving a unitary state action doctrine. 167 Commentators urge that state action inquiry should be viewed
as a ruling on the merits of the underlying constitutional c1aim. 168 In
practice, courts purport to examine the nexus between government and
the practice of the alleged wrongdoer; yet such a characterization obscures the actual inquiry undertaken. Courts actually balance "the relative merits of permitting the challenged practice [of the alleged
wrongdoer] to continue against the limitation which it imposers] on the
asserted right [of the aggrieved party]."169
The value of the challenged practice and the nature of the right
threatened are relevant to the court's inquiry, if not to the traditional
unitary inquiry. What must be determined is not the quantum of state
activity; rather, as Professors Robert Glennon, Jr. and John Nowak
assert:
What must be determined is whether the deprivation or denial of
the asserted right violates the [Constitution]. The determination
must be made as to whether the [Omstitution] guarantees individuals the ability to exercise [a] right free of the limitation arising
from the existence of the challenged practice, since the right and
the practice cannot co-exist. If the right is guaranteed by the [Constitution] the state is not permitted to maintain a legal system
which legitimates or tolerates the challenged practice. 170
The United States Supreme Court has on occasion mentioned a balancing process. In Marsh v. Alabama,171 a Jehovah's Witness attempted
to distribute leaflets within the boundaries of a privately owned company
166. [d.
167. See Chemerinsky, Rethinking State Action, 80 Nw. U.L. REv. 503, 503-05 (1984); Phillips,
supra note 140, at 721-33.
168. For analyses with respect to various state action issues of an approach balancing the merits
of the competing claims, see H. FRIENDLY, THE DARTMOUTH COLLEGE CASE AND THE PUBLICPRIVATE PENUMBRA 13-29 (1969) (proposing limited use ofa balancing test); Black, supra note 164,
at 85-107 (discussing the unworkability of the state action doctrine in modem race-discrimination
cases, but forecasting its continued use by the Supreme Court); Glennon & Nowak, supra note 154,
at 232-59 (reviewing the balancing tests employed by the major state action theories and cases);
Horowitz, The Misleading Search for 'State Action' Under the Fourteenth Amendment, 30 S. CAL. L.
REv. 208, 212-20 (1957) (analyzing the extent to which fourteenth amendment provisions apply to
state '~udicial" action and to "private" action); see also L. TRIBE, supra note 89, at 1688-720 (addressing the problem of state action in general). Professor Tribe's discussion of state action very
closely approximates the balancing test described by Glennon and Nowak.
169. Glennon & Nowak, supra note 154, at 231.
170. [d. at 230.
171. 326 U.S. 501 (1946).
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town. l72 The town considered Marsh in violation of trespass laws and
prevented his distribution of leaflets. 173 The Court found that the owners
of the company town were performing a public function and therefore
were required to guarantee that Marsh could exercise his constitutionally
protected rights. 174 In a revealing section of the opinion the Court observed: "When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as
we must here, we remain mindful of the fact that the latter occupy a
preferred position." 175
Texas courts are competent to perform such a balancing test. Balancing rights in this manner is appropriate to state constitutional discourse and, significantly, will yield different results than would (or does)
balancing rights under federal analysis.
v.
Balancing Rights: "Governmental Action" and the Texas
Constitution
By simply deferring to federal state action analysis, the Gaudet, Lincoln, and Cedillo courts have erred. With no meaningful examination of
the circumstances surrounding the adoption of the ERA or the intended
meaning of its provisions, the purposes served by the federal state action
doctrine, or the incoherent nature of federal state action case law, these
courts have strained to incorporate into state constitutional discourse a
doctrine not intended for, and particularly ill-suited to, such an
endeavor.
In assessing viable alternatives to the analysis relied on by these
three Texas courts, two pathways of thought begin to emerge. First, Professor Skover of Washington State argues straightforwardly that traditional state action doctrine has no place whatsoever in state
constitutional discourse. 176 Second, Professors Glennon and Nowak argue that traditional state action inquiry, focusing on contacts between
government and private actor, is misleading and can only lead to incoherent results. 177 These two pathways, however, reach a common destination. Skover envisions state constitutional analysis in which "[t]he
172. [d. at 503.
173. [d. at 503-04.
174. [d. at 506-07.
175. [d. at 509. In some Court opinions, the balancing approach is quite evident. See Hudgens
v. NLRB, 424 U.S. 507 (1976) (retreating from the Marsh opinion and falling back on the traditional
state action inquiry); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc.,
391 U.S. 308, 313-25 (1968); cJ. Lloyd Corp. v. Tanner, 407 U.S. 551, 561-70 (1972) (applying a
balancing test in refusing to hold that a private shopping center was subject to the fIrst amendment).
176. See Skover, supra note 140, at 254-75.
177. See, e.g., Glennon & Nowak, supra note 154, at 224-26 (addressing the inconsistencies en-
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state courts must determine by examination of the merits of the constitutional claims whether the constitution secures an interest as of right to
the complainant and whether this interest has been injured unduly by the
private opponent's exercise of an alleged liberty."178 Critics of traditional federal state action inquiry, such as Glennon and Nowak, envision
a similar balancing process. I79
A balancing of rights, instead of a formalistic search for governmental involvement, would also serve the one purpose underlying the state
action doctrine that is appropriate to state constitutional discourse: to
preserve a free zone within which individuals can act without encountering constitutional checks. More importantly, a balancing of rights would
allow for recognition of much broader rights afforded by the Texas ERA.
In essence, a wider range of private activities can be attacked under the
ERA than under the fourteenth amendment. Such an expansion is both
justified and necessary because the proposed analysis entails an examination of the rights asserted by the aggrieved person. The substantive
Texas ERA protections-even apart from consideration of the governmental action issue--are, at least as to sex-based distinctions, greater
than the protections arising under the fourteenth amendment. I80
To this end, it is instructive to note that in cases turning on construction of state constitutional provisions other than ERAs, state courts
have confronted the question of whether to impose state constitutional
norms on private actors. California and New Jersey courts, for example,
have applied state constitutional equal protection standards to private
conduct.181 In Texas, too, as other commentators have observed,I82
courts are addressing the alleged distinction between private and public
conduct.
gendered by the differing application of the traditional sufficiency-of-contacts test for state action by
the Warren and Burger Courts).
178. Skover, supra note 140, at 277.
179. See Glennon & Nowak, supra note 154, at 231-59. Moreover, Glennon and Nowak, and
Skover, ascribe some significance to the existence of governmental involvement, either through a
slightly more stringent standard of liability or, more appropriately, as a factor to be considered in
relation to the nature of the conflicting rights. Compare Skover, supra note 140, at 274-75 (arguing
for a more stringent standard for governmental actors) with Glennon & Nowak, supra note 154, at
243-47 (arguing for consideration of this issue as part of the balancing process).
180. See, e.g., In re Unnamed Baby McLean, 725 S.W.2d 696, 698 (Tex. 1987) (adopting a standard of review more stringent than that applied under federal equal protection analysis).
181. See, e.g., Gay Law Students Ass'n v. Pacific Telephone & Telegraph Co., 24 Cal. 3d 458,
469, 595 P.2d 592, 598-99, 156 Cal. Rptr. 14, 20-21 (1979) (holding that the state is not bound by
federal decisions in interpreting the state equal protection provision); Peper v. Princeton Univ. Bd. of
Trustees, 77 N.J. 55,76-79, 389 A.2d 465, 476-77 (1978) (resolving a sex-discrimination case under
the standards of the New Jersey Constitution).
182. See Hart, Free Speech on Private Property-When Fundamental Rights Collide, 68 TEXAS
L. REv. 1469, 1474-80 (1990).
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Three Texas free-speech cases exemplify the confrontation between
constitutional rights and private actors. In Jones v. Memorial Hospital
System,183 a Houston court of appeals recognized that the Texas Constitution guarantees, in positive terms, the right to free speech, while the
United States Constitution proscribes, in negative terms, governmental
interference with the exercise of free speech. 184 The Jones court observed
that this difference justified departure from federal tests and standards in
overturning the trial court's summary judgment. 18S In Nuclear Weapons
Freeze Campaign v. Barton Creek Square Shopping Center,186 and Right
to Life Advocates, Inc. v. Aaron Women's Clinic,187 a Travis County district court and a Houston court of appeals engaged in balancing tests,
weighing the rights of the citizen exercising free speech against the property rights of the private landowner. In Barton Creek, the court allowed
expressive activity at a shopping mall. 188 In Aaron, the appellate court
disallowed expressive activity at a medical clinic where abortions were
performed. 189 Although the courts reached different results, both courts
considered similar factors, including the use and nature of the private
property,190 and the nature of the speech activity.191
In Barton Creek and Aaron, Texas courts recognized the greater
protections granted by the Texas Constitution. Each court looked beyond the private property involved to the competing interests at stake.
As Judge Hart wrote in Barton Creek, "[T]he question of state action is
eliminated and the only one that remains is the balancing of the rights to
exercise free speech, assembly and petition, on the one hand, and on the
other, the property rights of the owner."192 The Aaron court wrote,
"This opinion is not based simply on the fact that the property is private,
but rather is based on a balancing of factors in which the private use
outweighs appellants' attempted public [expressive] use."193 Texas
courts construing the Texas ERA should similarly engage in a balancing
183. 746 S.W.2d 891 (Tex. App.-Houston [1st Dist.] 1988, no writ).
184. See id. at 893-97. Perhaps more importantly, the court, in reversing summary judgment for
the defendant hospital, held that whether state action was present "involves a mixed question of fact
and law." ld. at 896. Therefore, a Texas state action standard, under such a formulation, involves a
jury determination.
185. See id. at 893-94.
186. No. 349268 (Dist. Ct. of Travis County, 126th Judicial Dist. of Texas, letter decision July
13, 1983) (copy on file with Texas Law Review).
187. 737 S.W.2d 564 (Tex. App.-Houston [14th Dist.] 1987, writ denied), cert. denied, 109 S.
Ct. 71 (1988).
188. Barton Creek at 9.
189. See Aaron, 737 S.W.2d at 568-69.
190. See Aaron, 737 S.W.2d at 568; Barton Creek at 7-8.
191. See Aaron, 737 S.W.2d at 569; Barton Creek at 8-9.
192. Barton Creek at 2.
193. Aaron, 737 S.W.2d at 569.
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of rights-on the one hand, the right to be treated equally, without regard to sex, race, color, creed and national origin, and on the other, the
right to make certain private choices.
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