THE TEXAS EQUAL RIGHTS AMENDtvIENT
IN THE COURTS-1972-1977: A REVIEW AND
PROPOSED· PRINCIPLES OF INTERPRETATION
Rodric B. Sc/wen"
1.
INTRODUCTION
In November 1972, the voters of Texas approved an Equal Rights
Amendment to the Texas Constitution. The Texas Equal Rights Amendment states that: "Equality under the law shall not be denied or abridged
because of sex, race, color, national origin."! In March 1972, eight months
before the Texas Constitution was amended, the Congress of the United
States approved the proposed twenty-seventh amendment to the United
States Constitution and submitted it to the states for ratification. Better
lmown as the Federal Equal Rights Amendment, the proposed federal
amendment guarantees equality of the sexes in these words: "Equality of
rights under the law shall not be denied or abridged by the United States
or by any State on account of sex.'~2
If the Federal Equal Rights Amendment, which prohibits sex discrimination under federal and state law, had been ratified by the required number of state legislatures as promptly as its proponents hoped, the guarantee
of sex equality included in the Texas Equal Rights Amendment might wcll
have been subordinated to irrelevance under accepted principles of federal
constitutional supremacy.3 But the Federal Equal Rights Amendment has
not yet been ratified by the required number of state legislatures, and its
future is at best uncertain.4 For more than five years the Texas Constitution
has contained a specific guarantee of sex equality under law, a guarantee
which has no explicit counterpart in the United States Constitution.
Although the United States Supreme Court and lower federal courts
have decided, and will continue to decide, cases of alleged sex discrimination under the general language of the equal protection clause of the four-
.. Professor of Law, Texas Tech University; B.A., University of Colorado; J.D.,
University of New Me.nco. The author gratefully acknowledges research assistance provided by Michael B. Charlton and Kenneth L. McAlister, students in the Texas Tedl
University School of Law.
1. TEX. CONST. art. I, § 3a.
2. The Federal Equal Rights Amendment was ratified by the Tc.m!> Legislature
in 1973. S. Con. Res. 62d Leg., 2d Spec. Sess. 27 (1973).
3. See gener;iiy Nyquist v. Mauclet. 432 U.S. 1 (1977); Graham v. Ricllardson,
403 U.S. 365 (1971); Zschernig v. Miller, 389 U.S. 429 (1968).
4. Ratification is required of 38 states. Thirty-five states have ratified the anlCndment. but three have moved to rescind the approval The deadline for ratification is
March 22, 1979, but it could be e.nended under a measure being considered by Congress. WaIl St. J., June 6, 1978, at 1, coL 3.
537
HeinOnline -- 15 Hous. L. Rev. 537 1977-1978
538
HOUSTON LAW REVIEW
[Vol. 15:537
teenth amendment to the United States Constitution,s these federal decisions
cannot wholly displace or constrain the authority of Texas courts to interpret the state constitution in Texas for the benefit of Texans. State courts
remain free to accord greater protection for individual rights under state
constitutions and state laws than the United States Constitution requires.
A recent South Dakota case,6 typical of recent state court decisions,
illustrates the occasionally forgotten truism that the United States Constitution is not the sole repository or measure of individual rights in the
United States. In State v. Opperman7 the South Dakota Supreme Court first
held that the defendant's criminal conviction must be reversed because the
evidence used to convict him had been seized in violation of the fourth
amendment to the United States Constitution.s The state appealed to the
United States Supreme Court, which held that the evidence was not
seized in violation of the United States Constitution and remanded to tho
South Dakota Supreme Court.9 Upon remand, the South Dakota Supreme
Court held that the evidence was seized in violation of the South Dakota
Constitution, declaring that the state constitution warrants a "higher standard of protection for the individual in this instance than the United States
Supreme Court found necessary under the Fourth Amendment."lO
If the South Dakota Supreme Court can provide greater protection
for South Dakotans under its state constitution than the United States
Constitution requires, then surely the Texas appellate courts may do no
less for Texans under the Texas Constitution. The Texas Equal Rights
Amendment is relevant and will remain relevant for Texans, and the
Texas appellate courts are under no compulsion to equate individual rights
guaranteed by the Texas Equal Rights Amendment ,vith those guaranteed
by federal courts interpreting the equal protection clause of the fourteenth
amendment to the United States Constitution.
During the five-year period from November 1972 until November 1977,
the Texas appellate courts decided thirteen cases that mention, discuss,
or refer to the sex equality provision of the Texas Equal Rights Amendment. l l Of these thirteen cases, three were decided by the Texas Court of
5. E.g.( Craig v. Boren, 426 U.S. 903 (1976); Stanton v. Stanton, 421 U.S. 7,
13-18 (1975); Kahn v. Shevin, 416 U.S. 351, 355-56 (1974); Reed v. Reed, 404 U.S.
71,74-77 (1971).
6. State v. Opperman, 247 N.W.2d 673 (1976).
7. 228 N.W.2d 152 (1975).
8. ld. at 156-59.
9. South Dakota v. Opperman, 428 U.S. 364,375-76 (1976).
10. 247 N.W.2d at 675.
11. Refer to notes 16-218 infra and accompanying text.
HeinOnline -- 15 Hous. L. Rev. 538 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDM.ENT
539
Criminal Appeals and the remainder by the courts of civil appeals}2
Although several decisions of the courts of civil appeals were appealed,13
the Texas Supreme Court had delivered no opinion interpreting the sex
equality provision of the Texas Equal Rights Amendment during the
five-year period ending in November 1977.
The constitutional guarantee of sex equality presents a series of distinct but related questions for the Texas courts. Has the plaintiff suffered
a denial of equality "because of sex"? If so, does the unqualified guarantee
of sex equality nevertheless allow inequality "because of sex" when justified by a compelling or reasonable countervailing interest? How should the
courts respond to inequality "because of sex" when the basis for the inequality is a physical characteristic unique to only one se.x? In each case, has
the denial of equality "because of sex" also occurred "under the law" as
the amendment requires? What remedy is appropriate when a person is
denied equality "because of sex"? Is the plaintiff denied equality "because
of sex" when the law provides "separate but equal" treatment for the sexes?
In the second part of this article, the thirteen appellate decisions referring to the Texas Equal Rights Amendment are reviewed and discussed.
The third part of this article presents and discusses proposed principles of
constitutional interpretation for cases arising under the sex equality provision of the Texas Equal Rights Amendment
Five years ago, one commentator e>.-pressed concern that the Texas
Equal Rights Amendment would be "significantly diluted" if it were interpreted to guarantee equality of the sexes only when a court believed such
equality was "reasonable."14 However, the commentator further suggested
that an absolutely logical and literal interpretation would invalidate "funda-
12. The Texas Court of Criminal Appeals cases include: Johnson v. State. 548
S.W.2d 700 (Te:~. Crim. App. 1977); Ex p'arte Tullos, 541 S.W.2d 167 (Tc.'t. Crim. App.
1976); Finley v. State, 527 S.W.2d 553 (Tex. Crim. App. 1975). The court of civil appeals decisions are: Junior Football Ass'n v. Gaudet, 546 S.W.2d 70 (Tcx.. Civ. App.Beaumont 1976, no writ); Mercer v. Bel. of Trustees, 538 S.W.2d 201 (Te.'t. Civ. App.Houston [14th Dist.] 1976, writ ref'd n.r.e.); White v. Corpus Christi Little Misses
Kickball Ass'n, 526 S.W.2d 766 (Te.'t. Civ. App.-Corpus Christi 1975, no writ); Lipsh},
v. Lipshy, 525 S.W.2d 222 (Te.'t. Civ. App.-Dallas 1975, writ dism'd); Friedman v.
Friedman, 521 S.W.2d 111 (Tex. Civ. App.-Houston [14th Dist.] 1975, no writ);
Texas Woman's Univ. v. Chayklintaste, 521 S.W.2d 949 (Te.~ Civ. App.-Fort Worth),
rev'd on other groumk, 530 S.W.2d 927 (Te.~ 1975); Turner v. City of Baytown. 516
S.W.2d 270 (Tex. Civ. App.-Houston [14th Dist.] 1974, no writ); Cooper \'. Cooper,
513 S.W.2d 229 (Tex. Civ. App.-Houston [1st Dist.] 1974, no writ); Perkins \'. Frccman, 501 S.W.2d 424 (Tex. Civ. App.-Beaumont 1973), rco'd on other grounds, 518
S.W.2d 532 (Tex. 1974); Scanlon v. Crim, 500 s.w.2d 554 (Te.'t. Ci.... App.-Dallru.
1973, writ refd n.r.e.).
13. Those decisions which were al?pealed are: Mercer v. Bd. of Trustees, 538
S.W.2d 201 (Tex. Civ. Ap~.-Houston L14th Dist.] 1976, writ reFd n.r.e.); Lipshy
v. Lipshy, 525 S.W.2d 222 (Te.'\:. Civ. App.-Dallas 1975, writ dism'd)\ Texas Woman:.
Univ. v. ChaykIintaste. 521 S.W.2d 949 (Te.'\:. Civ. App.-Fort Worth}, rco'd on other
grounds, 530 S.W.2d 927 (Te.'t. 1975); Perkins v. Freeman, 501 S.W.2d 424 (Tc-,.
Civ. App.-Beaumont 1973), rev'd on other grounds:. 518 S.W.2d 532 (Tc.'\:. 1974);
Scanlon v. Crim, 500 S.W.2d 554 (Te.'\:. Civ. AI1P.-DruJas 1973, writ rerd n.r.c.).
14. Comment, An Overview of the Equal Rights Amendment in Texas, 11 HOl:s.
L. REv. 136, 137 (1973).
HeinOnline -- 15 Hous. L. Rev. 539 1977-1978
540
HOUSTON LAW REVIEW
[Vol. 15:537
mental statutes that no one, including the most determined proponents of
the amendment, intended to strike down."15 Have the Texas appellato
courts "diluted" the constitutional guarantee of sex equality under law?
Have the Texas appellate courts produced bizarre and unthinkable decisions
by an "absolutely literal" interpretation of the constitutional guarantee?
Have the Texas appellate courts discovered an appropriate middle ground
between "dilution" and "literal" interpretation of the constitutional guarantee of sex equality under law? A chronological review of the decided cases
may suggest answers to these questions.
II. THE DECIDED CASES
The following review of the decided appellate cases is presented
chronologically by date of decision. For convenience, the term "Texas ERA"
is used throughout the article to mean the sex equality provision of tho
Texas Equal Rights Amendment.
A.
The Promise of Marriage Gase
The first sex equality case arising under the Texas ERA, Scanlon v.
Grim,16 was a suit for breach of promise to marry brought by a female
plaintiff against a male defendant. Apparently believing that an action for
breach of promise to marry was available only to females, the trial court
rendered summary judgment for the male defendant on the ground that
the Texas ERA had abolished this cause of action,11 If the action for
breach of promise to marry may be asserted only by a woman against a
man, then rights and liabilities under law are determined solely by the
party's sex and thus constitute a form of sex discrimination forbidden by
the Texas ERA. Reasoning that inequality is remedied by equality, the
trial court simply abolished a cause of action for women which had never
existed for men.
The female plaintiff appealed to the court of civil appeals. The court
rejected the trial court's basic premise that an action for breach of promise
to marry could not be asserted by a man against a woman, stating that:
"We know of nothing in Texas law to prohibit a suit by a man for damages
for breach of a promise of marriage."18 Indeed, the appellate court cited un
1899 Texas decision, Wells v. Hardy,t9 that lends support to the proposition
that an action for breach of promise to marry may be asserted by a person
of either sex. 20
15. Id. at 137.
16. 500 S.W.2d 554 (Tex. Civ. App.-Dallas 1973, writ refd n.r.e.).
17. Id. at 555.
18. Id. at 555-56.
19. 51 S.W. 503 (Tex. Civ. App.-1899, writ refd).
20. Id. at 504-06 (holding that a contract to marry was not binding on n fcmnlo
between the ages of 18 and 21, solely on the grounds of incapacity).
HeinOnline -- 15 Hous. L. Rev. 540 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
541
Had the appellate court rested with its conclusion that actions for
breach of promise to marry could be brought by persons of either sex,
even before the Texas ERA, additional discussion of the Texas ERA would
be unnecessary. For this particular cause of action, equality of the sexes
existed before the Texas ERA was approved and the amendment merely
required a continuation of the pre-existing sex equality. But the court
went on to reject the trial court's ruling that the ERA had abolished the
woman's action for breach of promise to marry, for it was "just as reasonable
to say that it [the amendment] removed discrimination by recognizing the
right of both men and women to bring such suits.":!l The quoted phrase
indicates that the appellate court was blending two distinct questions into
one. The first question under the Texas ERA considers whether a denial
of equality because of sex is shown. After a violation of the constitutional
guarantee is found, the second question considers the appropriate judicial
remedy.
If Texas law did not recognize a man's cause of action for breach of
promise to marry before the amendment, the sex equality required by the
amendment could be achieved as easily by ex"tending the action to men
rather than denying it to women. Assuming that an action for breach of
promise to marry was available only to women before the amendment,
whether the action should be denied to women or e.'\"tended to men after
the amendment is solely a question of the appropriate remedy for a violation of the state constitution, a question often more difficult than the language of the trial and appellate courts in Scanlon indicates.
The sex equality provision of the Texas ERA guarantees only one substantive right: equality of treatment under law. No other right is ereated
or guaranteed by the amendment. For example, a statute requiring all persons in the state to shave their heads presents no question under the Te."\as
ERA, for all persons, men and women, are treated equally. Conversely, a
statute requiring only men to shave their heads presents a question of
unequal treatment based on a person's sex. The Texas ERA forbids inequality of treatment under law, so a court must first decide if the plaintiff has
shown a forbidden denial of equality. This showing should not be difficult
for a male plaintiff required to shave his head when females are not similarly constrained. The forbidden inequality is manifest, but what is the
proper remedy for this violation of the constitution? Equality. But equality
of the sexes only can be achieved in the hypothetical case by (1) invalidating
the statute, thus permitting men to grow scalp hair, or (2) extending the
burdens of the statute to women, thus requiring them to shave their heads.
Although either remedy is contrary to the will of the legislature, the statutory inequality must yield to the constitution.
What principle, if any, should guide the court in selecting a remedy
for a violation of the constitutional guarantee of sex equality? When the for21. 500 S.W.2d at 556.
HeinOnline -- 15 Hous. L. Rev. 541 1977-1978
542
HOUSTON LAW REVIEW
[Vol. 15:537
bidden inequality arises through operation of a statute, a court might select
that remedy which satisfied the constitutional requirement of equality but
is also the most consistent, or least inconsistent, with the legislative will.
In the hypothetical head-shaving case, the legislature did not intend to
make women shave their heads but did intend for men to shave their
heads. Extending the head-shaving burden to women seems neither more
nor less consistent with the legislative will than permitting men to escape
the head-shaving requirement. Perhaps the court should select that remedy
which results in the least "judicial legislation." The hypothetical statute
requires all men to shave their heads, so the court should simply nullify
that single legislative act and should not undertake judicial extension of the
head-shaving requirement to women when the legislature has not done so.
This remedial principle of '1east judicial legislation" might well be
appropriate in the head-shaving case but probably would not prove reliable
or satisfactory in every case of statutory inequality. For example, a statute
which granted welfare benefits only to white persons could be challenged
successfully by a non-white person. Few courts would be willing to remedy
the forbidden racial inequality by striking down the entire welfare program
because non-whites are excluded, although judiCial extension of welfare
benefits to non-white persons does expand the statutory program beyond
the limits set by the legislature.
In this hypothetical head-shaving case, the following statement contains the most satisfactory remedial principle: Those persons disfavored by
the inequality should receive the benefits enjoyed by those persons favored
by the inequality.22 Hence, the head-shaving statute is invalidated and
men, like women, may grow scalp hair. Obviously women were favored
by the inequality because they were free under law to grow scalp hair or
shave their heads, but men were disfavored because they were required
to shave their heads.
In the foregoing discussion, it was not the Texas ERA that created a
male's "right" to grow scalp hair. Any "right" to grow scalp hail' by judicial
nullification of an unconstitutional statute is merely an incident of the
judicial remedy selected to correct inequality by imposing equality of treatment. Had the court selected the second possible remedy, extending the
burdens of the head-shaving requirement to women, then men would have
secured the remedy of equality but no "right" to grow scalp hair. Similarly,
the legislature might react to the first remedy (invalidation of the male
head-shaving statute) with a statute requiring all persons, men and women,
to shave their heads. Although such an unlikely exercise of legislative
authority could be challenged on a number of state and federal constitutional grounds, the Texas constitutional guarantee of sex equality is not
offended because the sexes are treated ,vith perfect equality.
22. See generally Note, The Effect of an Unconstitutional Exception Clause U/lOII
the Remainder of a Statute, 55 HARV. L. REV. 1030 (1942).
HeinOnline -- 15 Hous. L. Rev. 542 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
543
Returning to Scanlon v. Crim23 and actions for breach of promise to
marry, the trial court believed that the action rested with females exclusively, discriminated against men in violation of the Texas ERA, and remedied the inequality by denying the action to females. u Equality was
achieved by the trial court, because the cause of action simply ceased to
exist for any person, male or female. The appellate court suggests the other
remedy for sex equality.25 If the action for breach of promise to marry
was exclusively for the benefit of females before the Texas ERA, the appropriate remedy for such inequality is to e},.tend the action to males rather
than denying it to females.
If it were clear that the action for breach of promise to marry was
exclusively for females before the Texas ERA, neither the trial nor appellate
courts remedy is plainly more appropriate than the other. First, the action
for breach of promise to marry was not created specifically by legislative
act, but was incorporated into the general law of this state from the common law. Second, the action itself, and others like it, has been abolished
by statute or judicial decision in a number of states and has been criticized
severely by commentators.26 Applying the general remedial principle of
extension of benefits to the disfavored class results in e},.tending the cause
of action for breach of promise to marry to men, assuming that it was exclusively for women before the Texas ERA. In the preamendment assumption,
plaintiffs are always women and defendants are always men. If the right
to bring a cause of action is considered beneficial for the plaintiff, it appears
that women are the favored sex. Hence, as the appellate court suggested in
Scanlon,27 the benefits of "plainti£fhood" in actions for breach of promise
to marry should be extended to the disfavored male sex, not denied to the
favored female sex. The result is that men and women enjoy equal benefits
as potential plaintiffs and equal liabilities as potential defendants.
One may sympathize with the trial court's remedial choice of abolishing the action for persons of either sex as an indirect method to excise tins
anachronistic cause of action from Texas jurisprudence.2S Although the
appellate court in Scanlon was mindful of present disenchantment with
actions for breach of promise to marry,29 it was unwilling to use the Texas
ERA to perform a function more properly left to the legislature or the
Texas Supreme Court.30
As the first decided appellate case discussing the Texas ERA, Scan23. 500 S.W.2d 554 (Tex. Civ. App.-DaIlas 1973, writ ref'd n.r.e.).
24. 1d. at 555.
25. 1d. at 556.
26. W. PROSSER, HANDBOOK OF THE LAw OF TORTS 887 (4th ed. 1971); Feinsinger, Legislative Attack on "Heart Balm," 33 MIca L. REv. 979, 979 (1935). The
action for breach of promise to marry was severely criticized as long ago as 1929.
Brown, Breach of Promise Suits, 77 U. PA. L. REv. 474 (1929).
27. 500 S:W.2d 554, 556 (Tex. Civ. App.-DalIas 1973, writ rcfd n.r.e.).
28. 1d. at 555.
29. 1d. at 556.
30. 1d.
HeinOnline -- 15 Hous. L. Rev. 543 1977-1978
544
HOUSTON LAW REVIEW
[Vol. 15:537
Zon contains no significant interpretation of the amendment. The court's
conclusion that men as well as women could bring the action for breach of
promise to marry before the Texas ERA did not require a discussion of the
amendment. However, the court seemed quite willing to extend the causo
of action to men had the action been available only to women before the
amendment. Despite the appellate court's conclusion in Scanlon that Texas
actions for breach of promise to marry were available to both men amI
women, the action traditionally is regarded as one for aggrieved women
whose expectations are shattered by men. 3t The Scanlon court alluded to the
"practical difficulty" a male plaintiff may experience in persuading a jury
to award damages for a female's breach of promise to marry, but the
court would not assume that Texas jurors would violate their oaths and
ignore relevant evidence. 32 Noting public sentiment against discrimination
based on sex, the court would not agree, as a matter of law, that recovery
of damages by a male is forbidden by prevailing "public mores."33 Whether
the court's appraisal of prevailing public mores is correct cannot be known.
The Texas ERA guarantees only equality; it does not protect male and
female defendants from outdated causes of action.
B.
The Attorney's Fee Case
The Texas ERA was next mentioned in Perkins v. Freeman. 34 Alleging
change of conditions, the plaintiff-mother brought an action for child
custody against the defendant-father after the father had been awarded
custody of the child in an earlier divorce proceeding.3s The jury found that
no change in custody was necessary and awarded the father a judgment
of $8,050 against the mother for attorney's fees. 36 The mother appealed and
asserted that the trial court erred by awarding attorney's fees to the father.
The appellate court held that the child whose custody was the subject of
litigation was the real party in interest and that attorney's fees were necessaries furnished to the child by the father.37 Thus, the judgment for attorney's fees, characterized as a "necessary" for the minor child, is an exception
to the usual rule that a party's legal fees cannot be recovered from an
adversary in the absence of statute or conb'act between the parties.3S
This holding alone raises no issue under the sex equality provision of
the Texas ERA, but the particular facts of Perkins apparently suggested a
possible sex equality problem because the judgment was for the father
and against the mother. In an earlier child custody case relied upon by the
31. Brown, Breach of Promise SUits, 77 U. PA. L. REV. 47'1, 475 (1929).
32. 500 S.W.2d at 555.
33. ld.
34. 501 S.W.2d 424 (Tex. Civ. App.-Beaumont 1973), rcv'd 011 other grOllllCis,
518 S.W.2d 532 (Tex. 1974).
35. 501 S.W.2d at 426.
36. ld. at 426, 429.
37. ld. at 429-30.
38. ld. at 429.
HeinOnline -- 15 Hous. L. Rev. 544 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
545
appellate court in Perkins, the mother was awarded attorney's fees against
the father.39 Should it matter in Perkins that the father recovered attorney's
fees from the mother? The court, citing the Texas ERA and section 4.02
of the Texas Family Code, which imposes equal obligations of support for
children upon mother and father, held that the propriety of an award of
attorney's fees in a child custody case is unaffected by the sex of the parent
recovering the judgment or responsible for its payment.40 The judgment
for attorney's fees in Perkins was affirmed:u
Although the Texas ERA is not a major element in the Perkins decision,
the court had no difficulty in enforcing the plain language of the amendment. If a father may be charged with attorney's fees in one child custody
case, then the mother may similarly be charged in another child custody
case. Perkins, like Scanlon,42 provides no significant interpretation or discussion of the sex equality provision of the Texas ERA, unless it can be
said that an appellate decision giving effect to the plain language of the
amendment is significant.
In these first two appellate decisions mentioning the Texas ERA, males
received "benefits" normally considered the special prerogative of females.
In Scanlon, men, like women, may sue for breach of promise to marry;-t:I
in Perkins, fathers, like mothers, may recover attorney's fees in child custody
cases.44 No woman, however, has lost any benefits in Scanlon or Perkins,
though women are subjected to the same liabilities as men. Women have
lost no benefits but have gained potential liabilities; men have lost no potentialliabilities but have gained benefits. These two decided appellate c-ases
are thus consistent with the sex equality prOvision of the Texas ERA.
C. The Community Property Case
The next appellate case invoking the sex equality prOVISIOn of the
Texas ERA was Cooper v. Cooper.45 In Cooper, a divorce case, the husband
appealed, asserting that the trial court erred by awarding the wife approximately three-fourths of the community property and $48,000 of the husband's separate property.46 Cooper v. Cooper was the first appellate case
presenting an opportunity to determine the effects of the Texas ERA regarding the division of property in divorce. The court's opinion declared that the
adoption of the Texas ERA presented a "serious question" concerning the
"continued validity of the traditional approach ... to questions arising in
39. Schwartz v. Jacob, 394 S.W.2d 15, 17, 19-21 (Tc.'\:. Civ. App.-Hollston
1965, writ ref'd n.r.e. ).
40. 501 S.W.2d 430.
41. 518 S.W.2d 532 (Tex. 1974).
42. 500 S.W.2d 553 (Te.'\':. Civ. App.-Dallas 1973, writ refd n.r.e.).
43. 500 S.W.2d at 556.
44. 501 S.W.2d at 429-30.
45. 513 S.W.2d 229 (Tex. Civ. App.-Houston [1st Dist.11974, no writ).
46. ld. at 231-32.
HeinOnline -- 15 Hous. L. Rev. 545 1977-1978
HOUSTON LAW REVIEW
546
[Vol. 15:537
divorce actions such as the division of property of the parties."47 Apparently, the "serious question" was not so serious after all, for the balance of
the court's opinion discussing division of property on divorce is wholly
barren of any reference to the Texas ERA.48 This peculiar omission of the
"serious question" presented in Cooper is never explained.49
On the questions of unequal division of community property between
divorcing spouses and the award of separate property of one spouse to the
other, the court held that differences in the "earning capacity and business
opportunities" of the spouses would justify an unequal division of the
community property.50 However, the court also held that the separate
property of one spouse should not be awarded to the other simply to
equalize the comparative wealth of the spouses, but unspecified circumstances might justify awarding separate property of one spouse to the
other.51
The Texas Constitution commands sex equality under law, yet the
court in Cooper approves unequal division of the community property
between the spouses upon divorce. In Cooper, the female spouse received
three-fourths of the community property and the male spouse received
one-fourth. This result, emphasizing the sex of each spouse, seems plainly
contrary to the constitutional requirement of sex equality under law. But
emphasizing the sex of each spouse merely belabors the obvious and distorts the "serious question" presented in Cooper. Every divorce necessarily
involves a male and a female,52 and it is customary for courts to discuss
the equities between the divorcing spouses by unavoidable reference to the
sex of each spouse-i.e., Mr. Cooper or Mrs. Cooper, the husband or the
Wife, his property or her property.
Consider this sex-neutral paraphrasing of a significant portion of the
court's opinion in Cooper where the names "Red Cooper" and "Blue Cooper"
represent the spouses:
At the time of trial, Red Cooper was 38 years of age, apparently in
good health, and a college graduate. Red and Blue Cooper were
married for sixteen years, during which time Red Cooper did not
work outside the home. During most of these years Blue Cooper
pursued medical training and as a result is able to earn a substantial income.53
47.
Id. at 231.
48. The court did discuss the impact of the Texas ERA on the child support
obligation. Refer to text accompanying notes 56-57 infra.
49. The court may have forgotten about the Texas ERA, however unlikely that
may be. The court may have concluded that discussion of sex equality and division
of property upon divorce was too complex or confusing for one opinion, although this
too is unlikely. The court may have answered the "serious questions" by saying nothing
about it.
50. 513 S.W.2d at 234.
51. Id.
52. Research discloses no reported judicial decision recognizing or authorizing
a marriage between I>ersons of the same sex.
53. 513 S.W.2d at 234.
HeinOnline -- 15 Hous. L. Rev. 546 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AM.ENDMENT
547
This imaginary quotation summarizes the coures view of the equities in
Cooper and justifies awarding "Red Cooper" three-fourths of the community
property, not because "Red Cooper" was the wife, but hecause "Red
Cooper" was a spouse whose major contribution to the marriage was
maintenance and care of the home and children while Blue Cooper's major
contribution to the marital enterprise was earning money. The divorce has
no effect upon Blue Cooper's earning capacity as a physician, but Red
Cooper, who spent sh..1:een years working in the home, has no similar earning capacity after the divorce. Red Cooper, the homemaker, could have
been the husband, and Blue Cooper, the physician, could have been the
wife. If so, the equities between the spouses should remain the same, and
Red Cooper, the hypothetical husband-homemaker, should receive threefourths of the community property.
The Texas ERA does not require that all males and females be treated
equally. The amendment forbids inequality "because of sex"; it does not
forbid inequality between males and females when the inequality is based
upon factors other than the persons sex. The unequal division of community property in Cooper represents an adjustment of the individual equities
between the divorcing spouses. Mrs. Cooper received three-fourths of the
community property, not because she is female, but because the equities
predominate in her favor, as the equities might predOminate for the male
spouse in a different marriage situation. The preceding interpretation of
the Texas ERA, which permits unequal treatment of the spouses upon
divorce when the inequality is based on considerations other than sex,
is consistent with the view most commentators have adopted when discussing the possible effects of the proposed Federal ERA.la Unfortunately,
the court in Cooper omitted all discussion of the Texas ERA in affirming
an unequal distribution of the community property.
Although the court in Cooper omitted discussion of the sex equality
provision of the Texas ERA in that part of the opinion devoted to division
of the community and separate property, the court mentions the Texas ERA
in reviewing the trial court's judgment on child support.~ Dr. Cooper
apparently argued that the trial court's determination of his obligation for
child support was excessive and unequal. The court, after citing the sex
equality provision of the Texas ERA and section 4.02 of the Texas Family
Code which imposes upon "each spouse . . . the duty to support his or
her minor children," said that "it must be presumed that the legislature
intended that the duty of the spouses to support their minor children is
54. E.g., Brown, Emerson, Falk & Freedman, The Equal Rights Amendment: A
Constitutional Basis for Equal Rights for Women, 80 YALE L.J. 871, 896 (1971); Murray & Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII. 34 CEO.
WASH. L. REv. 232, 239 (1965); TobolowsJ..-y, For tllc Equal Ris1lts Amendment, 26
TEL B.J. 1004, 1074 (1963).
55. 513 S.W.2d at 234.
HeinOnline -- 15 Hous. L. Rev. 547 1977-1978
548
HOUSTON LAW REVIEW
[Vol. 15:537
equal."5G The court continued, however, to say that this duty of equal
support does not mean that the court must divide the burden of child support "equally between the parties" but that the "court's order in this respect
should reflect a due consideration of the respective abilities of the spollses
to contribute."57
The court's language seems somewhat contradictory when it first
recognized a parental duty of equal support and then held that the burden
of support need not be divided equally between the parents. The contradiction is explained if the court's language merely recognized that the duty
of child support historically was imposed solely on the father. The Texas
ERA and the Texas Family Code altered the traditional duty of support
so that both father and mother now have a duty of child support. However,
the burden imposed by the duty of support is measured in each case by the
"respective abilities" of each parent regardless of sex. If this is the court's
analysis in Cooper, then an "unequal" burden of child support imposed
upon one parent because of that parent's greater ability to provide it is
not a denial of equality "because of sex."
Depending on the facts of the particular case, the father or mother
may be required to contribute a greater share of the burden of child support, or the burden may be divided equally. For example, if Mrs. Cooper
were a successful physician and Mr. Cooper the homemaker, then the
greater burden of child support might be imposed on the mother. If both
parents were successful physicians, then a more nearly equal burden of
support might be imposed on each parent determined by the total dollars
required to maintain the appropriate standard of living for the children.
The Cooper opinion is generally disappointing. Although the results of
Cooper appear consistent with a permissible interpretation of the sex
equality provision of the Texas ERA, the court's failure to discuss the
"serious question" of sex equality in the context of an unequal division of
community property and an unequal burden of child support is mystifying.
Perhaps the Texas Supreme Court or another court of civil appeals will
explore more fully the "serious problem" in a future appeal.
D. The Police Officer C(J$e
The next appellate case alleging unconstitutional sex discrimination
was Turner v. City of Baytown.58 In Turner the female plaintiff first filed
suit against the defendant city in 1970, more than two years before the
Texas ERA was approved in 1972. Initiation of the suit in 1970 may explain
why the appellate court never referred specifically to the Texas ERA in its
1974 decision. The court concluded that there was "no showing of a violation of appellant's rights to equal protection under the United States and
56. Id., discussing TEX. FAM. CODE ANN. § 4.02 (Vernon 1974).
57. Id.
58. 516 S.W.2d 270 (Tex. Civ. App.-Houston [14th Dist.] 1974, no writ).
HeinOnline -- 15 Hous. L. Rev. 548 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
549
Texas Constitutions."59
'While the Turner court's reference to "equal protection" surely includes
the federal equal protection clause and its Texas constitutional counterpart,60 it is not clear that the sex equality provision of the Texas ERA also
is included within the reference to "equal protection." Even if the plaintiffappellant neglected to offer the Texas ERA as an additional ground Slipporting her claim of sex discrimination, an omission which seems unthinkable, it might be thought that the appellate court would at least indicate
awareness of the Texas ERA in a sex discrimination case decided on appeal
two years after the amendment was approved.
Thus, Turner is a sex discrimination case, but it cannot be stated with
certainty that Turner is also a Texas ERA case. The following review of
the facts and evidence in Turner provides no reason to believe that e~lllicit
reliance upon the sex equality provision of the Texas ERA would have
affected the result on appeal.
In Turner, the plaintiff, a policewoman, sued the defendant city, her
employer, alleging that her duties as a policewoman were substantially the
same duties performed by persons employed as patrolmen; that patrolmen
received a larger salary than policewomen; and that the difference in salary
between patrolmen and policewomen was based solely upon sex in violation
of unspecified federal and state laws and unspecified provisions of the
federal and state constitutions.61 She sought apprOximately $21,000 in damages, a sum representing the difference in salary received by a patrolman
and a policewoman during a nine-year period of the plaintiffs employment
as a policewoman.
If the plaintiffs allegations were true, an apparent violation of the
Texas ERA was established. Assume that all employees of the city's police
department perform identical law enforcement duties. Half of the police
employees are females whose job title is "policewoman," and the other half
are males whose job title is "patrolman." Patrolmen receive $100 more per
month than policewomen, though policewomen and patrolmen perform
the same duties. Under these facts, the job titles "patrolman" and "policewoman" are not truly descriptive of different jobs because persons in both
classifications perform the same duties. When different job titles are established on the basis of sex for persons performing the same duties, and the
male employee receives more compensation than the female employee, the
city is using job titles to discriminate against female employees on the
basis of sex. Men and women similarly situated-performing identical job
duties for their employer-are treated unequally because of sex. 'Vomen
59. Id. at 272.
60. U.S. CoNST. amend. XIV, § 1; TE.'"{. CoNST. art. I, § 3. The Texas vClSion
states, "All free men, when they form a social compact, have equal rights, and no man,
or set of men, is entitled to e:l:clusive separate public emoluments or pri\i1cges, but in
consideration of public services." TEX. CoNST. art. I, § 3.
61. 516 S.W.2d at 271.
HeinOnline -- 15 Hous. L. Rev. 549 1977-1978
HOUSTON LAW REVIEW
550
[Vol. 15:537
are disfavored because of sex and therefore are denied sex equality in violation of the constitutional guarantee.
Had the plaintiff in Turner succeeded in proving that her duties as a
policewoman were identical to the duties of a patrolman, she might well
have prevailed in the trial and appellate courts. But the trial court found
that the job titles "policewoman" and "patrolman" were in fact descriptive
of different jobs with substantially different duties, and the appellate court
concluded that the trial court's findings were supported by ample evidence. 62 The trial court's judgment that the plaintiff has suffered no violation of her statutory or constitutional rights was affirmed.o a
A violation of the sex equality provision of the Texas ERA is not
established upon bare proof that different rates of compensation arc
received by public employees for performing different jobs. The plaintiff
in Turner failed to establish an additional but crucial fact to support her
claim of sex discrimination-that she, a policewoman, did perform the same
duties as a patrolman. A policewoman receives less compensation than a
patrolman because her job is different than a patrolman's job, not because
she is a woman. Sex-based discrimination is forbidden by the Texas ERA,
but job-based discrimination is not forbidden. Both the trial and appellate
courts in Turner noted that the female plaintiff had never applied for and
was never denied a patrolman's job. 64 If she applied for and was denied
a patrolman's job, the reasons for denial might establish a violation of her
rights under the Texas ERA. A city may constitutionally pay different
compensation for different jobs, but it is unconstitutional to deny a
particular job to any person solely for the reason of the applicant's sex.
But the female plaintiff in Turner did not seek a patrolman's job. She chose
to rest her claim of sex discrimination upon the allegation that policewomen
received less compensation than patrolmen for performing identical duties.
Like many plaintiffs, the policewoman's allegations and evidence in Turner
were overcome by the defendant's evidence to the contrary. Policewomen
employed by the city of Baytown receive less compensation than patrolmen
because their jobs are different, not because they are women.
E. The Campus Housing Case
Texas Woman's University v. Chayklintaste6~ was the next appellate
case involving the Texas ERA. A state-supported university appealed the
trial court's decision that a university rule requiring female students to
reside in campus housing was unconstitutional. The appellate court affirmed
by agreeing that the rule was unconstitutional because it cllscriminated
62.
Id. at 272.
Id.
Id.
65. 521 S.W.2d 949 (Tex. Civ. App.-Fort Worth), rev'd on otller grounds, 530
S.W.2d 927 (Tex. 1975).
63.
64.
HeinOnline -- 15 Hous. L. Rev. 550 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
551
against female students when male students were permitted to reside offcampUS.56 Although the question probably was not presented by the female
plaintiffs, the court also held that male students suffered discrimination
because the university had not provided "substantially equivalent and equal
[campus] housing for men."67
Conceding that inequality because of sex clearly is apparent in tht'
university's rule, the peculiar facts of CTzayldintastc present a remedial
dilemma under the general rule that the disfavored sex should receive the
benefits enjoyed by the favored sex. Because the female plaintiffs were
required to reside in campus housing, they were denied the "benefit" of
choosing to reside off-campus. Male students, though free to reside offcampus, were denied the "benefit" of choosing to reside in campus housing
because none was provided for men. Although the court's opinion indicates
that both results are unconstitutional, the only relief was to strike the rule
requiring females to reside in campus housing.68 Fortunately for the univt:rsity, no male student appeared before the court seeking sex equality by
admission to the campus housing.
Even before adoption of the Texas ERA, female students were admitted to Texas A&M and male students were admitted to Texas "'oman's
University (TWU).69 Although TWU had incurred substantial indebtedness
to provide campus housing for female students, no campus housing was
provided for male students. The court's holding in Clzayklintastc leaves
TWU in an awkward position. Female students are no longer required to
reside in campus housing. A mass flight of female students to off-campus
housing may result in a serious financial crisis for the university through
loss of housing revenues to retire the bonded indebtedness. If this possible
flight of female students occurs, the only solution for TWU would be to
adopt a rule requiring that a certain number of students reside in campus
housing. However, these students could not be determined by sex-perhaps
by lot, by age, or by year in school-but not by sex.
Requiring any adult student, male or female, to reside in campus
housing as a condition of enrollment raises serious constitutional questions,70 but the requirement presents no question under the sex equality
provision of the Texas ERA when it e,,1:ends to male and female students
alike, or the decision is made upon factors other than the student's sex.
If a suit is brought by male students at TWU seeking the "right" to reside
in campus housing, the court's opinion in CTzayldintaste holds that the
66. 521 S.W.2d at 951.
67. ld.
68. ld.
69. ld. at 950.
70. E.g., ProstrolIo v. University of South Dakota, 507 F.2d 775, 780-82 (8th
Cir. 1974), cert. denied, 421 U.S. 952 (1975)(. Cooper v. Nix, 343 F. Supp. 1101, 110912 (W.D. La. 1972), aft'd, 496 F.2d 1285 5th Cir. 1974); Protz v. Louisiana Polytech. Inst., 316 F. Supp. 872, 881-84 (W.D. La. 1970), aff'd menl., 401 U.S. 1004
(1971); Moliere v. Southeastern Louisiana Polytech. Inst., 304 F. Supp. 826, 827-28
(E.D. La. 1969).
HeinOnline -- 15 Hous. L. Rev. 551 1977-1978
552
HOUSTON LAW REVIEW
[Vo!. 15:537
male students must be accommodated, unless TWU simply ceases to provide campus housing for any male or female student, a course of action
which the reality of bonded indebtedness makes unlikely.
It appears that TWU sought to justify the regulation requiring female
students to reside in campus housing primarily upon economic grounds. 71
If women, like men, are permitted to reside off-campus, the loss of tenants
from campus housing would produce a grave "fiscal hardship." If TWU
had required male and female students to reside in campus housing, the
denial of equality "because of sex" would be corrected, but the university
apparently considered this solution impractical. The appellate court noted
that it was "rather obvious from the record" that the university "cither
does not now have the space or the money to provide for an all-male
housing."72 This language indicates that the university, or the court, 01'
both, believed that male students could only be accommodated in separatc
all-male housing. Thus the possible solution of coeducational campus housing was rejected. Although segregation of the sexes in campus housing has
been traditional, it is not clear why adult male and female university students cannot be housed in coeducational campus facilities in the 1970s,13 In
any event, the court decided that the university lacked space or money to
provide all-male housing. If men cannot be required to reside in campus
housing because all-male housing is not available, the constitutional guarantee of sex equality required that women, like men, should be permitted to
reside off-campus if they so choose. The university's discriminatory rule
would not be preserved simply because a grave fiscal hardship might result
when females were permitted to reside off-campus. The appellate court said
that the university is "foreclosed from acting in the exercise of good business
judgment in the interest of the State of Texas or its own unit."74 In sum,
"good business judgment" must yield to more important interests expressed
in the constitutional guarantee of sex equality.
TWU appealed to the Texas Supreme Court. Between the date of
decision by the court of civil appeals and argument before the Texas
Supreme Court, TWU changed its rule to require that all male and female
students under age 23 reside in campus housing. TWU apparently decided
that male students could be accommodated in campus housing after all.
Because this change in rule removed any issue of inequality "because of
sex," the Texas Supreme Court decided the appeal on other grounds. 7G
71. 521 S.W.2d at 951.
72. Id.
73. Whether segregation by sex violates the Texas ERA is discussed later in this
article. Except for restrooms and bedrooms, it would not appear that any "right" of
personal privacy prevents male and female college students from residing in tho samt'
building or even on the same floor of a building.
74. 521 S.W.2d at 951.
75. Texas Woman's Univ. v. Chayklintaste, 530 S.W.2d 927, 928-30 (Tox. 1975)
(age classification held reasonably related to educational purposes and not violativo
of equal protection).
HeinOnline -- 15 Hous. L. Rev. 552 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
553
The appellate court cannot be faulted for rejecting the fiscal hardship
argument apparently advanced by the university to salvage its discriminatory housing rule. Had the court upheld the rule because serious fiscal
problems might result if it were declared unconstitutional, the decision
would mean that the constitutional guarantee of sex equality would become
"inoperative" when effectuation of the guarantee might result in some
adverse fiscal consequences for the state or its instrumentalities. The Texas
ERA obviously contains no "fiscal hardship" exception, and the Te.xas
courts should not add by interpretation what was omitted. Many decisions
of the United States Supreme Court specifically refuse to make effectuation
of individual rights guaranteed by the United States Constitution contingent upon fiscal consequences to governmental entities.76 The constitutional
guarantee of sex equality must prevail over fiscal concerns and "good business judgment."
Assume that the Texas legislature appropriated $500,000 to provide
vocational training for handicapped males. Invoking tile Texas ERA, a
handicapped female challenges her exclusion from the program. She is
denied benefits available to males solely "because of sex," and application
of the general remedial rule results in extension of tile vocational training
program to include women as well as men. This remedy for unconstitutional
inequality will have certain fiscal consequences. Assuming that as many
handicapped females enroll as handicapped males, tile number of persons to be trained \vith the $500,000 appropriation has increased by 100
percent If the quality of vocational training offered only to men for
$500,000 is to remain the same for male and female trainees, additional
funds must be secured to train the additional persons represented by the
female trainees. If the state is unable or unwilling to appropriate additional funds for the program, the quality of vocational training prOvided
for all trainees, male and female, must be reduced to whatever level the
finite sum of $500,000 \vill prOvide for twice as many trainees.
The legislature probably would not be pleased witll either result, but
the balance of values between equality and fiscal autonomy has been struck
by the state constitution. Male and female citizens shall not be denied
equal treatment because of sex, even when effectuation of this guarantee
requires the expenditure of additional public funds or results in a general
but equal reduction of benefits for all citizens, male and female alike. The
court's rejection of the fiscal hardship argument in Clzayklintaste, advanced
by TWU to suspend operation of the sex equality prOvision of the Texas
ERA, is significant because the fiscal hardship argument, frequently asserted by the government in cases arising under tile Federal Constitution,
probably \vill be asserted in future cases arising under the Texas ERA.
76. E.g., Nyquist v. Mauclet, 432 U.S. 1. 11-12 n.15 (1977); Frontiero v. Richardson, 411 U.S. 677, 690 (1973); Bullock v. Carter, 405 U.S. 134, 149 (1972);
Graham v. Richardson, 403 U.S. 365, 374-75 (1971).
HeinOnline -- 15 Hous. L. Rev. 553 1977-1978
HOUSTON LAW REVIEW
554
[Vol. 15:537
F. The Child Support Case
The sex equality provision of the Texas ERA was next mentioned
in Friedman v. Friedman,71 a case decided only a few days after the
Chayklintaste appeal. Friedman was a divorce and child support case in
which the father argued that the trial court's judgment determining his
obligation for child support violated the Texas ERA because the judgment
placed "on him all of the burden of financial support of the children."78
The court affirmed the trial court's child support judgment and found
no violation of the Texas ERA.79 The mother in Friedman was a college
graduate and had worked at "several jobs before her marriage," but she
testified during trial that she "did not feel that she would now be ablo
to obtain gainful employment."so According to the court, the value of
the community property awarded to each spouse was "quite substantinl."81
During the trial the mother testified that she required $2,000 per month
to support the children, but she was only able to itemize expenses totalling
$1,009 per month. The trial court ordered the father to pay $1,100 monthly
for child support.82 If $2,000 is required to support the children, the father
bears 55 percent of the financial support, but if only $1,009 per month is
required to support the children, the father bears 100 per cent of the financial burden of support. Doubts concerning the required monthly nmotmt
apparently were resolved in favor of the wife's asserted figure of $2,000,
while the appellate court also recognized the trial court's independent
"authority and duty" to determine the amount of support necessary for "tho
best interests of the children" regardless of assertions of either parent. S3
In Friedman, the appellate court rejected the father's argument that
his child support obligation violated the Texas ERA.B4 The court referred
to the Texas ERA, section 4.02 of the Texas Family Code, and Cooper,SG
a case presenting the same constitutional argument decided nine months
before Friedman and already discussed in this article.s6 Like the decision
in Cooper, the court in Friedman holds that determining the dollar burden
of child support by reference to each parent's ability to pay is consistent
with the equal obligation of support imposed upon each parent by Texas
law.s7 If Mr. Friedman was in fact obliged to contribute an unequal share
of child support, the "inequality" is not imposed because he is a man, but
because he happens to be the parent whose circumstances demonstrate a
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
521 S.W.2d III (Tex. Civ. App.-Houston [14th Dist.] 1975, no writ).
Id. at 113.
Id. at 115.
Id. at 113.
Id.
Id.
Id. at 115.
Id. at 114-15.
513 S.W.2d 229 (Tex. Civ. App.-Houston [1st Dist.] 1974, no writ).
Refer to text accompanying notes 45-57 supra.
521 S.W.2d at 115.
HeinOnline -- 15 Hous. L. Rev. 554 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
555
superior ability to contribute.
Friedman follows the earlier decision in Cooper and adds nothing new
to the case law interpreting the sex equality provision of the Texas ERA.
Although the Cooper and Friedman decisions have not answered every
question that might arise, the decisions nevertheless establish a general
approach toward Texas family law under the amendment. As commentators
predicted,88 "inequality" resulting from individualized judicial consideration of the respective equities between the spouses does not offend the
sex equality provision of the Texas ERA when the equities are determined
by reference to factors other than the party's sex. Of course there is a danger that a court's appraisal of the equities between the spouses may be
affected, consciously or unconsCiously, by stereotyped views concerning
husbands and ,vives, fathers and mothers, or men and women. Considering
the specific facts of Cooper and Friedman, the opinions seem free of inappropriate sex stereotyping, although both cases reveal a conventional marital relationship in which the female spouse cares for the home and children
while the male spouse earns the money to support the marital enterprise.
A case presenting different equities and a less conventional marital relationship will provide a more challenging test for the sex-neutral principles
approved in Cooper and Friedman.
A difficult question which could arise under the sex equality provision
of the Texas ERA has not yet been presented to a Texas appellate court.
VV'hen both divorcing spouses seek custody of the minor children and are
equally fit for the task, is it possible for the trier of fact to determine the
best interests of the children without an impermissible consideration of
each parent's sex? Continuation of any historical or legal presumption
favoring an award of custody to the mother, even when the father is equally
fit, seems clearly forbidden by the Texas ERA. When it appears that each
parent is equally fit to have custody, the trier of fact is confronted with an
unenviable responsibility, especially if the decision in favor of one parent
or the other must not consider the sex of the parent If the marital relationship were conventional, as in Cooper and Friedman, might not the trier
of fact decide that custody should be awarded to the mother because she
is not employed outside the home and will therefore devote a greater part
of her time to care of the children than would the father, who is employed
outside the home? If this occurs in a case of contested child custody, the
father is "disfavored" because he earns the money required to support Iiis
children, and the mother is "favored" because she is a full-time homemaker. If this result occurs only because the homemaker parent happens to
be the mother, then no denial of equality "because of sex" occurs. But if
88. See Brown. Emerson, Falk & Freedman, The Equal Rigll1s .1mcndmcnt: .\
Constitutional Basis for Equal Rights for Women, 80 YALE L.J. 871, 896 (1971); Em('rson, In Support of the Equal Rights Amendment 6 HAnv. C.H.-C.L. L. !W.'. 22-'), 2,26
(1971); Murray & Eastwood, Jane Crow and the Law: Sex Discrimination and Title
VII, 34 CEO. WASH. L. REv. 232, 239 (1965).
HeinOnline -- 15 Hous. L. Rev. 555 1977-1978
HOUSTON LAW REVIEW
556
[Vol. 15:537
the result occurs because the homemaker parent is the mother, denial of
equality "because of sex" has occurred.
The case of contested child custody between equally fit parents presents a genuine problem under the Texas ERA. However, the highly individualized nature of each case suggests no simple method to exclude
impermissible considerations of each parent's sex. The trial court is, or
should be, aware that the Texas Constitution forbids a preference "because
of sex," and if the trial is to a jury, then the trial court should instruct that
the sex of each parent is not to be considered in awarding custody to the
mother or the father.s9
C. Another Attorney's Fee Case
The next appeal presenting a question under the Texas ERA was
Lipshy v. Lipshy.90 In Lipshy, another divorce and child custody case, the
husband argued that the trial court's judgment that he pay the wife
$45,000 for her attorney's fees violated the sex equality provision of the
Texas ERA. The appellate court did not agree, concluding that the practical effect of the $45,000 award to the wife was simply to reduce the value
of the community property awarded to the husband in the divorce proceedings. The appellate court said the husband had "completely failed
to demonstrate" that the award of attorney's fees to the wife "was something other than a factor which the [trial] court considered in its division
of the parties' community property."91 An unequal division of community
property based on the equities between the spouses is not forbidden by
the Texas ERA. The court observed that pursuant to the Texas ERA, these
equitable considerations may justify recovery of an attorney's fee by the
husband. "The amendment does not simply preclude recovery by a
woman.''92
Texas trial courts enjoy substantial discretion in dividing community
property on divorce, and the husband in Lipshy offered no evidence from
which the appellate court might find that the sex of the wife, rather than
sex-neutral equitable considerations, explained the alleged inequality
between husband and wife. 93 Lipshy adds nothing to the earlier appellate
decisions of Cooper and Friedman.
Of the seven appellate decisions so far discussed, four presented questions under the Texas ERA arising in divorce or child custody cases. If
the reader is by now weary of family law cases, a respite is offered by
the remaining appellate decisions discussing the sex equality provision
of the Texas ERA.
89.
90.
91.
92.
93.
TEX. FAM. CODE ANN. § 11.13 (Vernon 1975).
525 S.W.2d 222 (Tex. Civ. App.-Dallas 1975, writ dism'd).
ld. at 226-27.
ld. at 227.
ld.
HeinOnline -- 15 Hous. L. Rev. 556 1977-1978
1978]
H.
THE TEXAS EQUAL RIGHTS AMENDMENT
551
The KielmaU Case
The next appellate case invoking the sex equality provISion of the
Texas ERA was White v. Corpus Christi Little Misses Kickball Association. 94 In White, a ten-year-old boy alleged that he was denied registration
and participation in a kickball program for the sole reason he was male.
The boy, relying on both the Texas ERA and the equal protection clause of
the fourteenth amendment to the United States Constitution, sought an
injunction. The trial court denied relief.!};j The boy appealed and the trial
court's judgment was affirmed, primarily because the plaintiff-appellant
had failed to comply with the applicable rules of appellate procedure.tl3
These procedural deficiencies permitted the appellate court to avoid any
discussion of the substantive questions presented by the appeal.
Was the boy actually denied participation in the kickball program
for the sole reason of his sex? Did the denial of equality because of sex
occur "under law," as the Texas ERA requires? Was a comparable Idckball
program offered for boys? Would a comparable boys' kickball program
permit the conclusion that "separate but equal" kickball programs for boys
and girls are permissible under the sex equality provision of the Texas
ERA? These and other perplexing questions might have been discussed
and decided in the White appeal, but they were not. In another and later
appeal, Junior Football Association v. Gaudet,97 the court decided the question avoided in White. Discussion of the constitutional questions presented
by the White case is deferred until the Gaudet appeal is reached in this
chronolOgical review of decided appellate cases.
I.
The Rape Case
Possibly the most difficult of the cases reviewed in this article is
Finley v. State. 98 In Finley, the male defendant was convicted of attempted
rape. On appeal, he argued that his conviction was unconstitutional under
the sex equality provision of the Texas ERA because the definition of
"seAual intercourse" in the Texas rape statute99 necessarily excluded all
females from the class of potential defendants. Thus, only males could be
found guilty of the criminal offense.loo The Court of Criminal Appeals
rejected Finley's constitutional argument and affirmed the conviction. The
result of the appeal, upholding the conviction, is perhaps defensible under
the Texas ERA, but the court's analysis leading to that result is not defensible.
94. 526 S.W.2d 766 (Tex. Civ. App.-Corpus Christi 1975, no writ).
95. Id. at 768.
96. The plaintiff-appellant failed to bring forward a statement of facts and did
not request the trial court to make findings of facts. Id.
97. 546 S.W.2d 70 (Tex. Civ. App.-Beaumont 1976, no writ).
98. 527 S.W.2d 553 (Tex. Crim. App.-1975).
99. TEL PENAL CoDE ANN. § 21.01 (Vernon 1974).
100. 527 S.W.2d at 555.
HeinOnline -- 15 Hous. L. Rev. 557 1977-1978
HOUSTON LAW REVIEW
558
[Vol. 15:537
The court first noted that a female could be convicted of rape as an
accomplice. 10l Because the Texas Penal Code abolishes the distinction
between principals and accomplices, a female accomplice to rape can now
be punished as a principal.102 Therefore, the court concluded, the "proscriptions of the [rape] statute apply equally to men and women."l03 Had
the court stopped with its preliminary determination that both men and
women can be subject to equal punishment as principals for the crime of
rape, the result would satisfy, at least superficially, the constitutional
requirement for sex equality tmder law.
The court, however, chose to elaborate upon the constitutional question, apparently because a female acting alone, unlike a male acting alone,
could never be guilty of rape as the "actual perpetrator."104 The definition
of sexual intercourse for the offense of rape requires penetration of the
"female sex organ by the male sex organ."105 For obvious physical reasons,
a woman acting alone could never perform the "sexual intercourse" necessary to complete the offense of rape. The court thus perceived a statutory
"classification on the basis of sex."106 Only a male could be the "actual perpetrator" of the offense, and only a female could be the victim of rape.
Whether Finley argued that his conviction violated the Texas ERA because
males alone could be the "actual perpetrators" of rape or because females
alone could be the victims is unlmown, but the court determined that persons are classified differently by law because of sex. 107 A female acting
alone could never be charged with rape, and a male could never be the
victim of rape. The sole cause of this "sex classification" is the definition of
rape carried forward in the new Texas Penal Code.
Once the court in Finley had discovered a statutory scheme providing
for different treatment based on sex, it was then required to decide
whether the classification violated the sex equality provision of the Texas
ERA. Finley v. State is the first case in which a Texas appellate court was
required to decide if there are, or should be, exceptions to the unqualified
constitutional guarantee of sex equality under law. The court, citing a
United States Supreme Court decision concerned with sex discrimination
and an interpretation of the equal protection clause of the fourteenth
amendment to the United States Constitution/os said that "we must determine if that [sex-based] classification is rationally related to the furthering
of a legitimate state interest."109 The quoted language in the preceding
sentence merely summarizes the prevailing federal test for reviewing statu101.
102.
103.
104.
105.
106.
107.
108.
109.
Id.
TEX. PENAL CODE ANN.
§ 7.01 (Vernon 1974).
527 S.W.2d at 555.
Id.
TEX. PENAL CODE ANN. § 21.01 (Vernon 1974).
527 S.W.2d at 555.
Id.
Stanton v. Stanton, 421 U.S. 7 (1975).
527 S.W.2d at 555.
HeinOnline -- 15 Hous. L. Rev. 558 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
559
tory classifications under the general language of the equal protection
clause of the fourteenth amendment.110 The court in Finley never explains
why a federal equal protection test should govern its interpretation and
application of the specific and unqualified guarantee of sex equality contained in the Texas Constitution. Nothing in the Finley opinion clearly
demonstrates that the court realized that the fourteenth amendment to the
United States Constitution and the Texas ERA are not identical.
Although an extended discussion of federal decisions interpreting the
equal protection clause of the fourteenth amendment to the United States
Constitution cannot be undertaken here, the United States Supreme Court
has never held that every statutory classification violates the fourteenth
amendment The equal protection clause invalidates only those classifications which the Supreme Court finds "unreasonable"; classifications which
the Court finds "reasonable" are not forbidden. 111 This general test of
reasonable versus unreasonable classifications under the federal equal
protection clause had been followed on a case-by-case basis long before
the Texas ERA was approved in 1972.
That questions arising under the Texas ERA should be resolved by
reference to the federal equal protection test is scarcely a self-demonstrating proposition. First, the Texas ERA is part of the state constitution and
not part of the United States Constitution. Second, the Texas ERA provides a specific and unqualified guarantee of sex equality under law, while
the federal equal protection clause provides a general guarantee undifferentiated by reference to any specific factor, like race, sex, or national origin.
The United States Constitution, like the Texas ERA, can be specific and
unqualified, as the language of the nineteenth amendment reveals: "The
right of citizens to vote shall not be denied or abridged by the United States
110. Students of the Supreme Court realize that there arc perhaps three levels
of constitutional review for statutory classifications challenged under the federal equal
protection clause. For classifications based upon criteria that are not "constitutionally
suspect" and which affect no "fundamental right," the Court continues to use the
traditional rational-basis test noted by the Texas Court of Criminnl Appeals in Fjnl~.
See, e.g., Massachusetts Bel. of Retirement v. Murgia, 427 U.S. 307, 312-13 (1976);
New Orleans v. Dukes, 427 U.S. 297, 303 (1976). For classifications based upon
criteria that are "somewhat suspect" under the United States Constitution, the Court
is less willing to defer to legislature generalizations and will evaluate for itself tbe
relationship existing between the classification and the governmental objective advanced
to justify the classification. See, e.g., Trimble v. Gordon, 430 U.S. 762 (1977); Craig
v. Boren, 429 U.S. 190, 197-99 (1976). For classifications based upon criteria that
are «clearly suspect," or which affect a «fundamental right," the Court evaluates the
classification ,vith «strict scrutiny" and requires that the Classification advance a "compelling" governmental interest which cannot be advanced by less drastic means. See,
e.g., Graham v. Richardson, 403 U.S. 365, 374-75 (1971)i Loving v. Virginia, 388
U.S. 1, 11 (1967). IT a classification drawn on the basis or sele will not satisfy e\'cn
the traditio rial rational-basis equal protection test, then obviously the se."'I:-based classification could not survive review under the more e.xacting ~uOl protection test activated by the use of criteria that are "somewhat suspect" or "clearly suspect." Compare
Stanton v. Stanton, 421 U.S. 7, 13-15 (1975), and Reed v. Reed, 404 U.S. 71, 75-77
(1971), with Craig v. Boren, 429 U.S. 190, 197-99 (1976).
111. E.g., Massachusetts Bel. of Retirement v. Murgia, 427 U.S. 307, 312-13
(1976); New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
HeinOnline -- 15 Hous. L. Rev. 559 1977-1978
560
HOUSTON LAW REVIEW
[Vol. 15:537
or by any State on account of sex."112 Third, even before the Texas ERA
was approved, citizens of Texas were already protected from "unreasonable" treatment under law because of sex through the fourteenth amendment to the United States Constitution. Adding a specific guarantee of
sex equality under law to the state constitution was hardly necessary if its
purpose were merely to continue the prevailing test under the fourteenth
amendment. The "reasonable sex classification" test under the federal
equal protection clause was applied by both federal and state courts
before approval of the Texas ERA. If the Texas courts continue to apply
the same test of "reasonableness" in sex discrimination cases after approval
of the Texas ERA as they applied before the Texas ERA, the amendment
has changed nothing. A judicial opinion interpreting the specific constitutional guarantee of sex equality which, like Finley, merely declares-without
e:>"'Planation, discussion or reason-that the traditional and frequently sexstereotyped test of "reasonableness" is the "correct" constitutional test cannot be defended.
In any event, the court in Finley gave reasons for deciding that the
sex-based classification found in the Texas rape statutes does not violate
the Texas ERA and concluded that the reasons are rationally related to
some legitimate interest of the state. 113 Several of the reasons are that most
sexual assaults are committed by men against women; that sexual assaults
may result in serious injury to the victim; that rape may result in unwanted
pregnancy; and that men are protected from assaults, "sexual and otherwise," by women under other provisions of the penal code. 114
If the Texas ERA permits "reasonable sex inequality" under law, as
the court held in Finley, then the court's list of reasons for the sex-based
discrimination found in the Texas rape statute cannot be faulted. But the
"reasonable inequality" test is not the only test available for interpreting
the constitutional guarantee of sex equality under law. The court's failure
to mention the other tests is mystifying. Perhaps the court was not informed
of the other tests because the appellant failed to present and argue them.
Equally plausible, however, is the possibility that the court considered
these other tests and rejected them, though failing to include discussion
and reasons for rejection in the Finley opinion. Whatever the reason, the
other tests are now considered.
For want of a more descriptive label, the first test is the "plain language" test, which follows, not surprisingly, from the plain language of
the Texas ERA. The amendment guarantees that no person shall be denied
equality under the law because of sex. Applying the test is not difficult.
The state constitution is violated whenever a court finds that persons are
treated unequally under law because of sex, regardless of the reasons
112. U.S. CONST. amend. XIX.
113. 527 S.W.2d at 556.
114. Id.
HeinOnline -- 15 Hous. L. Rev. 560 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
561
advanced to justify the inequality. No "balancing" of competing interests
is permitted under the plain language test, because the Texas ERA has
already "balanced" all interests in favor of sex equality under law. This plain
langauge test is consistent with the specific and unqualified guarantee of
sex equality, and this test provides the greatest protection against judicial
erosion of the principle of sex equality by conscious or unconscious sex
stereotyping. Under the "plain language" test, the Texas rape statute must
fall because only males can be defendants ("actual perpetrators") and only
females can be victims, unless it were shown that the law elsewhere provides equal punishment for a female who has nonconsensual intercourse
,vith a male victim. Equality of punishment, regardless of the label given
to the criminal offense, would provide an equal deterrent effect upon
potential female defendants and equal protection from the offense for
potential male victims.
But Texas statutes do not provide equal punishment for females wbo
have nonconsensual intercourse ,vith male victims. For example, a male
who rapes a female ,vithout "serious bodily injury" may be imprisoned for
20 years,115 but a female who has nonconsensual intercourse with a male
victim ,vithout "serious bodily injury" may be imprisoned for only one
year if some injury occurs,116 or fined only $200 if no injury occurs.1l1
Differentials in punishment for aggravated offenses-when the victim
suffers serious bodily injury-are more striking. A male defendant guilty
of aggravated rape upon a female victim may be imprisoned for life or
99 years/IS but a female defendant causing serious bodily injury to a male
victim of nonconsensual intercourse, an aggravated assault, may be imprisoned for not more than 10 years. 119
Had the court in Finley applied the plain language test, any reasons
advanced to justify the sex-based differences of the rape statute would be
constitutionally irrelevant, and the statute should be declared unconstitutional. Attempting to remedy the unconstitutional sex discrimination by
judicial extension of the rape statute to include female defendants who have
nonconsensual intercourse ,vith male victims would present additional
constitutional problems. Some of these problems include due process questions of adequate notice and fair warning to a judicially-created class of
female defendants and possible ex post facto questions. If the Texas rape
statute were declared unconstitutional under the Texas ERA, the legislature
remains free to correct the forbidden sex discrimination by enacting a new,
sex-neutral criminal offense prohibiting nonconsensual carnal knowledge
of any person by another person. I20 Conversely, the legislature might choose
115. TEX. PENAL CoDE ANN. § 21.02 (Vernon 1974) (second degree felony).
116. rd. § 22.01(a)(1) (class A misdemeanor).
117. rd. § 22.01(a)(3) (class C misdemeanor).
118. rd. § 21.03 (first degree felony).
119. rd. § 22.02 (third degree felony).
120. See Comment, An Overview of the Equal Rights Amendment in Texas, 11
Hous. L. REv. 136, 148 (1973).
HeinOnline -- 15 Hous. L. Rev. 561 1977-1978
562
HOUSTON LAW REVIEW
[Vol. 15:537
to do nothing, thus allowing the former offense of rape to be prosecuted
under the sex-neutral offenses of assault and aggravated assault. Judicial
reluctance to reverse Finley's conviction and declare the Texas rape statute
unconstitutional is understandable, for the decision might be viewed as a
judicial invitation to commit rape. But the court should not be faulted for
failing to give effect to the plain language of the state constitution. Fault,
if any, should be charged to the state legislature, which had the opportunity to conform the Texas Penal Code to the Texas ERA in the regular
legislative sessions of 1973 and 1975.
The language of the Texas ERA and the available legislative options,
taken together, suggest that the court might well have applied the plain
language test in Finley. Would literal application of the plain language
test in other situations lead to bizarre and wholly unintended results? If
men and women alike are given the equality guaranteed by the Texas ERA,
the resulting equality cannot be "unintended," unless "unintended" means
"unforeseen." Similarly, if application of the plain language test on a caseby-case basis happened to produce a "bizarre" result, recall that the Texas
ERA expresses a fundamental change in the state's policy.
Another test the court might have adopted in Finley is the "compelling
interest" test adapted from decisions of the United States Supreme Court. 121
The compelling interest test would represent a judicially-created qualification to the otherwise unqualified guarantee of sex equality under law.
This test is more difficult to apply than the "plain language" test and
therefore provides less protection against the conscious or unconscious
erosion of the principle of sex equality through sex stereotyping than does
the "plain language" test. However, the compelling interest test provides
more protection than the "reasonable inequality" test apparently adopted
in Finley.
Briefly stated, the compelling interest test prohibits sex-based inequality
unless the inequality advances a compelling governmental interest that cannot be advanced by other means. The governmental interest must be compelling, not merely reasonable, and the governmental interest must be
legitimate. A governmental interest that merely perpetuates the sex stereotyping forbidden by the Texas ERA could never be legitimate.
Excluding for a moment the risk of pregnancy to female victims of
rape, no compelling and legitimate interests of the state justify the striking
differences in punishment for nonconsensual intercourse determined by
the sex of the defendant and the sex of the victim. As stated above, a male
who rapes a female without injury to the victim may be imprisoned for
20 years, but a female who has nonconsensual intercourse with a male
without injury to the victim only may be fined $200.122 The crimes are
identical batteries accomplished through non consensual intercourse with121. Refer to note 110 supra.
122. Refer to text accompanying notes 115 & 117 supra.
HeinOnline -- 15 Hous. L. Rev. 562 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
563
out additional injury to the victim. If the risk of pregnancy for the female
victim is excluded from consideration, the only ex-planation for imposing a
more severe punishment on the male rapist must be that nonconsensual
intercourse without bodily injury for a female victim is ~omehow more
emotionally traumatic for her than for a male victim, or that a male rapist
is somehow more reprehensible than a female defendant who has nonconsensual intercourse with a male victim. This sex-based differential in punishment can be justified only by the sex stereotyping which the Texas ERA
forbids. The interest advanced by the sex-based differential is not legitimate
because it perpetuates sex stereotypes.
Because the interest advanced by the sex-based differences is not
legitimate, it could never be compelling. If the state has a compelling interest, it is to protect males and females equally from non consensual intercourse. A means to advance this compelling interest without a sex-based
classification is readily available. The state could pass a sex-neutral statute
prohibiting nonconsensual carnal knowledge of one person by jlllother
person with a provision for enhanced punishment when the victim, male
or female, suffers serious bodily injury.
Does the risk of pregnancy for a female victim of rape alone justify
the difference in punishment for the battery of nonconsensual carnal knowledge under the "compelling interest" test? The risk of pregnancy for the
female rape victim appears to be a legitimate governmental interest because
it may be justified for reasons other than impermissible sex stereotyping.
The distinction between sex stereotyping and sex-based classifications
which are not stereotypical is important. A sex stereotype is an overbroad
and therefore defective generalization attributing qualities possessed by
some members of the sex to all members of the sex. Consider the follOWing
sex stereotypes: Men are stronger than women and women are more sensitive than men. In fact all men are not stronger than all women, and all
women are not more sensitive than all men. These sex stereotypes are
often derived from historical myth, custom, and tradition unsupported by
fact. A major purpose of the sex equality prOvision of the Texas ERA is
to rid the law of these sex stereotypes by making the sex of a person an
impermissible basis for different treatment under law. In Texas, the burdens and benefits of citizenship can no longer be apportioned on the basis
of defective generalizations based on sex.
Although sex stereotyping is forbidden by the Texas ERA, the state
constitution cannot make Texans sexless. If the sex-based difference in
punishment for the battery of nonconsensual carnal knowledge upon a
female victim (rape) and upon a male victim (assault) is justified by the
risk of unwanted pregnancy for the female victim, this governmental interest is not a sexual stereotype. The difference in punishment considers a
gender-specific, unique physical characteristic. Only a female victim can
become pregnant, and no male victim can become pregnant. Although
some female victims are unable to become pregnant for reasons of disease,
HeinOnline -- 15 Hous. L. Rev. 563 1977-1978
HOUSTON LAW REVIEW
564
[Vo!. 15:537
injury, surgery, or age, no male can ever become pregnant. The risk of
pregnancy to a victim of non consensual intercourse is thus confined to
females assaulted by males.
Under the "plain language" test discussed above,l23 this gender-specific,
unique physical characteristic would be irrelevant because the plain language test for the constitutional guarantee of sex equality is literal, and
therefore rejects a balancing of countervailing interests to modify or temper
the plain language of the amendment. The "compelling interest" test, however, permits inequality under law ''because of sex" if the inequality advances a compelling and legitimate governmental interest which can be
advanced by no other means. Enhancing the punishment for males who
have nonconsensual carnal knowledge of females advances a legitimate
governmental interest because the risk of pregnancy is confined by the
laws of nature to the female sex. The state is permitted to increase protection for female victims by enhancing punishment for male defendants.
Is this governmental interest, the protection against the risk of pregnancy, also "compelling"? Unfortunately, no reliable catalog of "compelling
interests" is available for reference, nor is there an objective standard by
which interests can be classified as compelling or merely reasonablo.
Indeed, a troublesome shortcoming of the compelling interest test is the
necessarily subjective value judgment required of the court in each case.
One scarcely expects unanimous agreement among judges when the court
is required to make reasoned distinctions between "compelling" and "reasonable" governmental interests. Whether the additional risk of pregnancy
for female victims of rape is a compelling governmental interest is for the
courts to decide, but the following factors might be considered. It seems
unlikely that males commit rape to impregnate their female victims. The
conduct which presents the risk of pregnancy to a female victim is already
prohibited by the sex-neutral Texas assault statutes which proscribe nonconsensual injury and nonconsensual physical contact. A sex-neutral statute
providing more serious punishment for nonconsensual carnal knowledge of
one person by another than for assault upon one person by another presents
no question under the Texas ERA, but the Texas rape statute is not sexneutral.
Finally, if the additional risk for the female victim is realized and she
becomes pregnant, can the additional harm to the female victim, represented by the fact of pregnancy, be characterized as compelling? A female
victim of rape who becomes pregnant is confronted with either involuntary
motherhood or lawful termination of the pregnancy by accepted medical
procedures. Enhanced punishment for male rapists may deter conduct
that forces these unpleasant choices upon female victims. The governmental interest is reasonable, but is it also compelling? Intelligent persons might
reach different conclusions.
123.
Refer to text accompanying notes 115-120 supra.
HeinOnline -- 15 Hous. L. Rev. 564 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
565
The foregoing discussion reviews and discusses possible interpretations of the sex equality provision of the Texas ERA. The court's opinion
in Finley demonstrates little awareness of the difficult and perplexing
constitutional problems presented by the Texas ERA. What is most disturbing in Finley is not the result, but the court's apparent adoption of the
prevailing "reasonable inequality" test used by federal courts in equal
protection cases arising under the fourteenth amendment 1£ the Texas
appellate courts conclude that the Texas ERA permits inequality under
law "because of sex" whenever the inequality seems "reasonable," little if
any additional protection against traditional se."{ stereotyping has been
secured for Texans through adoption of the Texas ERA.
The court in Finley may not have completely relied on the "reasonable
inequality" test, for it later said: "Furthermore, a unique characteristics
test can be applied to justify the [sex-based] statutory classification."1:!"
Presumably the phrase "unique characteristics" means a gender-specific
characteristic unique to one sex or the other, for the court lists the following
unique characteristics: hymen and uterine injury to female rape victims, the
risk of pregnancy to female victims, and the "physiological difficulty of a
woman forcing a man to have sexual intercourse ,vith her."12!i These unique
characteristics, according to the court, "all suggest a justification for the
sexual distinction embodied" in the Texas rape statute.126 Interjection of a
"unique characteristic" test in Finley raises additional questions concerning
the court's interpretation of the Texas ERA, for it is unclear whether the
unique characteristic test is in addition to, merely supplements, or entirely
supersedes the "reasonable inequality" test mentioned earlier in the Finley
opinion.
Of the court's three "unique characteristics," only one, the risk of
pregnancy, is clearly unique to female victims of rape. Males and females
alike have sex organs subject to injury when they are victims of non consensual carnal knowledge. No reason appears why male sex organs should
receive less protection under law than female sex organs. Female sex
organs are obviously different from male sex organs, but possible injury
to the victim's sex organs is not unique to female victims. Moreover, the
sex-neutral Texas assault statutes already take account of a victim of
battery who suffers no injury ($200 fine),127 suffers nonserious bodily injury
(I year in prison),l28 or suffers serious bodily injury (10 years in prison).129
If "rape" of a male by a female requires that the victim's penis penetrate the female assailant's vagina, there is reason to believe that a female
124.
125.
126.
127.
128.
129.
527 S.W.2d at 556.
Id.
Id.
TEX. PENAL CoDE.ANN. § 22.01(a)(3) (Vernon 1974).
Id. § 22.01(a)(I).
Id. § 22.02.
HeinOnline -- 15 Hous. L. Rev. 565 1977-1978
566
HOUSTON LAW REVIEW
[Vol. 15:537
cannot forcibly rape a male. 130 Fear of bodily injury, often used by male
rapists to subdue female victims, would probably create an emotional
barrier to penile erection by the male victim.13l Without erection, the victim's penis could not penetrate nor be inserted into the female assailant's
vagina. To this extent, then, it appears that only a female could be the
victim of nonconsensual intercourse secured by the use of physical force
or by threat of physical injury to the victim's body. If this is so, that form
of rape accomplished by physical force might satisfy the court's "unique
characteristic" test, for it is an offense that can be committed only by a
male upon a female victim.
Intercourse secured by physical force is, however, only one of seven
different forms of nonconsensual intercourse proscribed and punished by
the Texas rape statute.132 Although forcible rape of a male by a female
may be impossible, there is reason to believe that a female could accomplish the six other forms of rape upon a male victim. An apparently unconstitutional sex-based differential in punishment and deterrence therefore
emerges for the six nonforcible forms of rape. Although males and females
alike can commit nonforcible rape and males and females alike can be
victims of nonforcible rape, only male defendants are subjected to significantly greater punishment for the offense and only females are given
greater protection against the offense through greater punishment imposed
upon male defendants. All seven forms of rape are punishable by imprisonment for up to 20 years if committed without serious bodily injury,t33 but
a female who commits nonforcible "rape" upon a male can be punished
only for an assault by a fine of $200 if no bodily injury results or imprisoned for one one year if nonserious bodily injury results. l34
If forcible rape is excluded, it is not clear why a female defendant
should be punished less severely than a male defendant because she might
encounter greater difficulty in completing the offense upon a male victim
than a male defendant might encounter in completing the offense with n
female victim. It might as easily be asserted that a defendant who persists
and completes the offense despite "difficulties" related to the victim's
physiology deserves greater punishment for unseemly perseverance. And
it certainly seems a novel proposition for criminal law to approve reduction
of punishment for a defendant who has more difficulty in completing the
offense than another defendant. Both male and female defendants may
experience difficulty in accomplishing nonconsensual intercourse upon a
victim of the opposite sex. Difficulty in completing the offense is not unique
to female defendants.
130.
Research,
131.
132.
133.
134.
Letter from Paul Gebhard, Director, Indiana University Institute for Sc'(
to the author (July 13,1976).
ld.
TEX. PENAL CODE ANN. § 21.02 (Vernon 1974).
ld. (second degree felony).
ld. § 22.01 (class C and class A misdemeanor).
HeinOnline -- 15 Hous. L. Rev. 566 1977-1978
THE TEXAS EQUAL RIGHTS AJ.fENDMENT
1978]
567
The risk of pregnancy for female victims is indeed unique to females.
Possible injury to a victim's sex organs is a risk shared by male and female
victims alike, but a male victim is exposed to no risk comparable to the
risk of pregnancy for a female victim. Earlier discussion covered the risk
of pregnancy as a possible compelling interest justifying a sex-based differential in punishment. In Finley, the court presents the risk of pregnancy,
not as a compelling interest, but simply as a unique characteristic of the
female sex.13S Again, the court apparently believed that the "unique characteristic" test, like the "reasonable inequality» test adopted earlier in the
same opinion, is so obviously appropriate that discussion and explanation
are not required. Surely the Texas ERA should have received more attention than the mere perfunctory and une:~:plained conclusions of the Texas
Court of Criminal Appeals.
As shown above, there is reason to conclude that two of the three
"unique characteristics" identified by the court to justify the sex-based
difference in punishment between rape and assault are not unique to the
female sex. The unqualified "unique characteristic" test can be applied
to perpetuate the sex stereotyping that the amendment was surely adopted
to prevent. Traditional sex stereotypes easily become "unique characteristics" justifying unequal treatment. The unqualified unique characteristic
test adopted in Finley thus has two edges: In one case it may be used to
grant a benefit but in the ne1..t case it may be used to impose a burden. ISO
Despite the specific and unqualified constitutional guarantee of sex
equality, it seems that a narrow, gender-specific, unique characteristic test
must be recognized under the Texas ERA. Discussion of a suggested unique
characteristic test is deferred until Part III of this article, where a general
approach for all cases arising under the sex equality provision of the Texas
ERA is proposed.
To conclude this e1..tended discussion of the Finley case, the court's
opinion is disappointing because it demonstrates little awareness of the
difficult constitutional questions presented. 'Vithout explanation or discussion, the court first applies a federal "reasonable inequality" test to modify
the unqualified guarantee of sex equality,137 and then applies, again without e1..-planation or discussion, a "unique characteristic" test to qualify the
unqualified constitutional test. l38 Finally, tlle court supports its conclusion
that Finley's conviction for attempted rape does not violate the Texas
Constitution by citation to appellate decisions from other jurisdictions
which did not apply a state equal rights amendment. IS9 The Texas ERA
fared poorly in Finley v. State.
135.
136.
ing from
137.
138.
139.
527 S.W.2d at 556.
E.g., Geduldig v. Aiello, 417 U.S. 484 (1974) (em~rncnt disability resultpregnancy excluded from otherwise comprehensive . bility program).
527 S.W.2d at 556.
rd.
rd.
HeinOnline -- 15 Hous. L. Rev. 567 1977-1978
HOUSTON LAW REVIEW
568
[Vol. 15:537
J. The Long Hair Case
The next appeal that presented a question under the Texas ERA was
Mercer v. Board of Trustees.140 In Mercer, a male public school student,
invoking the sex equality provision of the Texas ERA, challenged a school
district hair-length regulation that applied only to male students. The trial
court refused to issue a temporary injunction and the plaintiff-student
appealed. 141 The hair-length regulation challenged in Mercer obviously
denies male students equality under law because of sex. Female students
are free to have hair of any chosen length, but male students are not.
Although the appellate court apparently decided that the hair-length
regulation did violate the Texas ERA,142 the court was not willing to
provide a remedy: "We must be wise enough to perceive that constant
judicial intervention in some institutions does more harm than good."143
The trial court's refusal to enjoin enforcement of the unconstitutional
regulation was therefore affirmed.
The appellate court in Mercer realized that the case required interpretation of the state constitution and that the United States Constitution contains no provision comparable to the Texas ERA.144 This realization, however, merely identifies the question which primarily concerned the Mercer
court: When the plaintiff establishes that equality under law is denied
because of sex, what is the proper standard of constitutional interpretation? After a thorough review of federal sex discrimination cases arising
under the fifth and fourteenth amendments to the United States Constitution and state cases interpreting state equal rights amendments comparable
to the Texas ERA, the Mercer court held that the sex equality provision of
the Texas ERA is subject to the "compelling interest" test. 145 Briefly, the
court concluded that the Texas ERA makes sex constitutionally suspect as
the basis for different treatment under law; that inequality because of sex
can be upheld only when the state justifies the sex-based inequality by a
compelling governmental interest; and that the burden of proof and persuasion for establishing a compelling interest rests upon the party defending
the sex-based classification.146 This formulation of the "compelling interest"
test is adopted from decisions of the United States Supreme Court. The
Supreme Court has applied a so-called "strict scrutiny-compelling interest"
test in cases where the basis of a classification disfavoring certain persons
is a "suspect criterion" (such as race),147 or the persons disfavored by the
140. 538 S.W.2d 201 (Tex. Civ. App.-Houston [14th Dist.] 1976, wrlt rcf'd
n.r.e.).
141. ld. at 202.
142. ld. at 206.
143. ld. The court also stated: "Court intervention is simply not n suitnblo dovlco
with which to enforce some rights." ld. (emphasis added).
144. ld. at 203.
145. ld. at 204-06.
146. ld. at 206.
147. E.g., Loving v. Virginia, 388 U.S. 1, 11 (1967).
HeinOnline -- 15 Hous. L. Rev. 568 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
569
classification suffer infringement or denial of a "fundamental right" (such
as the right to vote).l4S
Three possible tests for reviewing sex-based classifications challenged
under the Texas ERA have been described in conjunction with the earlier
discussion of the Court of Criminal Appeals opinion in Finley v. State.l4!l
In Finley, the Texas Court of Criminal Appeals adopted a "reasonable
inequality" test where a sex-based classification will be upheld if it appears
"reasonable" and is related to a rational and permissible governmental
objective.150 The court of civil appeals in Mercer approved a "compelling
interest" test,151 a different and more demanding standard of review than
the standard adopted by the court of criminal appeals in Finley. The "plain
language" test, which simply applies the plain language of the Texas Constitution to invalidate any form of inequality based on sex regardless of
the justification, is specifically rejected by the Mercer court1:i2 and not even
mentioned by the Finley court. Given a choice among three possible tests
for deciding cases arising under the sex equality provision of the Texas
ERA, the Mercer court rejected the most restrictive "plain language" test
and the least restrictive "reasonable inequality" test and chose the intermediate «compelling interest" test. Why?
One reason for the Mercer court's adoption of the compelling interest
test is its belief that the United States Supreme Court would apply a
compelling interest test in sex discrimination cases if the Federal ERA were
ratified.153 The source of this belief is the United States Supreme Court
decision in Fronti.ero v. Richardson,l54 where a servicewoman cllallenged
preferential treatment for servicemen in the United States military under
the due process clause of the fifth amendment to the United States Constitution. Relying upon the equal protection concept embodied in the due
process clause of the fifth amendment, four Justices held that sex, like
race, is a constitutionally suspect criterion for different treatment under
law.155 Preferential treatment for males was therefore subject to the compelling interest test.156 The plurality Justices in Frontiero held the preference for males unconstitutional because the Government failed to demonstrate that the preference served any compelling governmental interest
justifying different treatment because of sex.157 Three Justices, in a concurring opinion by Justice Powell, agreed that the preference for males
was unreasonable and unconstitutional/ 58 but they were unwilling to join
148.
149.
150.
151.
152.
153.
154.
155.
156.
157.
158.
E.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670 (1966).
527 S.W.2d 553 (Te.\':. Crim. App. 1975).
Id. at 556.
538 S.W.2d at 206.
Id.
Id. at 204.
411 U.S. 677 (1973).
Id. at 682 (plurality opinion).
Id. at 688-89.
Id. at 689-91.
Id. at 691. (Powell, J., concurring).
HeinOnline -- 15 Hous. L. Rev. 569 1977-1978
570
HOUSTON LAW REVIEW
[Vol. 15:537
the plurality's holding that sex-based classifications must be reviewed under
the strict scrutiny-compelling interest test. ISO Justice Powell declared that
whether sex-based classifications should be subjected to the compelling
interest test is the "precise question" to be resolved by the Federal ERA
if it is adopted.160 Counting Justices, the Mercer court concluded that four
had applied the compelling interest test to sex-based classifications and
three more believed that adoption of the Federal ERA would require use
of the compelling interest test. 161
Since seven Justices of the United States Supreme Court would apply
the compelling interest test to sex-based discrimination under the Federal
ERA, the Mercer court seems persuaded that there is no reason for adopting a different test for the Texas ERA. The Federal ERA, if adopted, will
apply to the states, and thus, state court interpretation of a state equal
rights amendment must provide at least as much protection against sex
discrimination as the Federal ERA. As noted in the INTRODUCTION, however,
nothing in the United States Constitution prevents a state court from interpreting its state constitution in a manner providing greater protection for
its citizens than the protection required by the United States Constitution.
The Texas courts remain free to apply the "plain language" test under the
Texas ERA even if the United States Supreme Court would adopt a compelling interest test, should the Federal ERA become a part of the United
States Constitution.
Additionally, the plurality and concurring opinions in Frontiero do not
clearly reveal that seven of the nine Justices agreed that the compelling
interest test would be approved for the Federal ERA, when and if it is
ratified. In Frontiero, the Court was confronted with a sex-based classification that was challenged under the equal protection concept contained
within the general language of the due process clause of the fifth amendment to the Federal Constitution. Justice Powell's concurring opinion indicates only that three Justices believed ratification of the Federal ERA
would then require the compelling interest test for sex-based classifications. 162 Although the four plurality Justices applied a compelling interest
test under the due process clause of the fifth amendment,163 the plurality
opinion offers no speculation concerning the proper test if the Federal
ERA, with its specific and unqualified guarantee of sex equality, were
ratified. If the Federal ERA were ratified, might not the four plurality
Justices then conclude that the plain language of the Federal ERA means
what it says, and that all sex-based classifications must fall, regardless of
justification, whether compelling or not?
Additional reasons for rejecting a "plain language" test in cases arising
159. Id.
160. Id. at 692.
161. 538 S.W.2d at 204.
162. 411 U.S. at 692 (Powell, J., concurring).
163. Id. at 689-91 (plurality opinion)~
HeinOnline -- 15 Hous. L. Rev. 570 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
511
under the Texas ERA are suggested in Mercer when the court observes
that a sex-based classification must fall unless the party defending it demonstrates that the inequality is "required by (1) physical characteristics, (2)
other constitutionally protected rights such as the right of privacy, or
(3) other ·compelling reasons'."I64 It is obvious that no compelling interest
of the school district justified the sex inequality. Scalp hair is not a physical characteristic unique to one sex; no other person's constitutional rights
will be infringed if a male student wears his hair at the length he chooses;
and no other "compelling reasons" for treating male and female students
unequally with respect to hair length are presented.
Applying a strict plain language test to the facts of Mercer would
produce the same result as use of the compelling interest test. The foregoing quotation from the Mercer opinion reveals that the plain language
test probably was rejected not because it was inappropriate for the facts
of Mercer but because the plain language test might prove inappropriate
in future "problem cases" where a sex-based classification is arguably
justified by a physical characteristic unique to one sex, or by concern for
other constitutionally protected rights, or by the catch-all "other compelling reasons."
Unique physical characteristics and other constitutionally protected
rights are equated by the Mercer court with "compelling reasons" for not
adopting a test which invalidates any and all forms of sex inequality, regardless of justification. lOS The compelling interest test provides judicial maneuvering room when these "problem cases" arise in the future, but the plain
language test does not.
If the law takes account of a physical characteristic which is unique
to one sex, can the law be unconstitutional because it does not apply
equally to both sexes? If the law provides separate restrooms, dormitories,
prisons, and hospital rooms for persons of each sex, must so-called "unise.x"
facilities be established, or does a constitutional right of privacy outweigh
a constitutional right of sex equality? These difficult and perplexing questions, as well as others, probably occurred to the Mercer court, thereby
suggesting that adoption of a strict plain language test in Mercer for sex
inequality cases would be imprudent. The compelling interest test avoids
the inflexibility of the plain language test.
If the text and objectives of the Texas ERA are considered, the Mercer
court's adoption of a compelling interest test is preferable to the "reasonable inequality" test approved by the Texas Court of Criminal Appeals in
Finley v. State,166 because the compelling interest test makes justification
of a sex-based classification more difficult. It is submitted, however, that
all cases which have arisen and will arise under the sex equality provision
164. 538 S.W.2d at 206.
165. Id.
166. 527 S.W.2d 553, 556 (Tex. Crim. App. 1975).
HeinOnline -- 15 Hous. L. Rev. 571 1977-1978
572
HOUSTON LAW REVIEW
[Vol. 15:537
of the Texas ERA cannot be resolved by means of any single test. Attempting to establish a single all-purpose test for the difficult constitutional questions presented by the Texas ERA will prove unworkable, produce confusion, and create a judicial climate conducive to erosion of the constitutional guarantee of sex equality. An overall approach for reviewing sex
inequality cases arising under the Texas ERA is proposed in Part III of
this article.
The Mercer court's opinion is disappointing because the court refused
to provide a remedy for the plaintiff whose constitutional rights the court
held were violated by the male hair length regulation. Even more disturbing is the Texas Supreme Court's refusal to grant Mercer's application for
a writ of error with the notation "no reversible error." Apparently the
Texas Supreme Court is not yet prepared to review the constitutional
questions presented in sex inequality cases.107 Although the temptation is
great, this article is not the place for an extended discussion of judicial
review, the discretion of courts, and judicial protection of individual rights.
Perhaps others will comment upon the court's policy-based refusal to provide a remedy for young Mercer and other male students attending public
schools in the North Forest Independent School District. This brief, albeit
incomplete, response is offered to the Mercer court's observation that judicial intervention in some institutions "does more harm than goOd."108 Government institutions cannot be "harmed" when they conform to the state
constitution. Changing a government institution is not synonymous with
harming a government institution. Persons responsible for operating government institutions, such as public schools, may resent the need to recognize the constitutional rights of the citizens that these government institutions serve, but government officers and public employees perform their
public duties subject to the state constitution. The voters of Texas have
not chosen to exempt the public schools from the ERA, and it seems
reasonable to assume that the voters expected the Texas courts to perform
their traditional duties by enforcing the constitutional guarantee of sex
equality whenever and wherever violations were found. If the Texas ERA
should not be enforced in the public schools, the state constitution should
be amended and not nullified by judicial refusal to provide a remedy. The
Texas ERA represents a fundamental reordering of the state's policies for
the benefit of all Texans. It is difficult to identify a more appropriate
environment for practicing what the Texas ERA commands than the public
schools, where young people are taught respect for the rule of law and
learn the rights and responsibilities of citizenship.
167. See, e.g., Mercer v. Bd. of Trustees, 538 S.W.2d 201 (Tex. Civ. App.Houston [14th Dist.] 1976, writ refd n.r.e.).
168. 538 S.W.2d at 206.
HeinOnline -- 15 Hous. L. Rev. 572 1977-1978
1978]
K
THE TEXAS EQUAL RIGHTS AMENDMENT
573
The Drunk Driving Case
The Texas Court of Criminal Appeals decided the next case in which
reference to the Texas ERA was made in Ex parte Tullos.IG 9 In Tullos, the
male petitioner challenged his sentence of confinement in jail after comiction for drunk driving. The action in Tullos challenged a sex-based classification that allowed 17-year-old males convicted of drunk driving to be
punished by confinement in the county jail but exempted 17-year-old
females convicted of the same offense from punishment by confinement. I7il
Habeas corpus relief was denied by the trial court. and the petitioner
appealed. The Texas Court of Criminal Appeals held that the sex-based
difference in punishment for the same offense was unconstitutional. ITI However, the court corrected the forbidden inequality by extending the risk of
confinement to 17-year-old females rather than removing the risk of confinement for 17-year-old males. I72 The male petitioner in Tullos prevailed
on the merits, but secured no relief.
The Tullos appeal was decided largely by reference to the equal protection clause of the fourteenth amendment to the United States Constitution and by reference to the court's prior decision in Ex parte MatthctlJS,173
where a similar sex-based classification was also held unconstitutional
under the federal equal protection clause.174 In Tullos, the court simply
added the Texas ERA to the federal equal protection clause and the earlier
Matthews case as an additional ground for holding unconstitutional the
sex-based difference in punishment. I7s It is not clear from the Tullos
opinion that the petitioner even relied on the sex equality provision of the
Texas ERA, and this omission may e1..-plain why the court's passing reference to the amendment seems more an afterthought than a major
reason for invalidating the sex-based classification.
Males and females convicted of drunk driving were not treated equally
under the statute invalidated in Tullos. The opinion in Tullos does not
indicate that the state's attorneys offered any justification-reasonable,
compelling, or otherwise-for the sex-based differential in punishment. It is
difficult. if not impossible, to think of any reason for the sex-based differential challenged in Tullos unless reliance is placed upon unconstitutional
169. 541 S.W.2d 167 (Te.... Crim. App. 1976).
170. The prosecution was brought under article 6701~!. TEX. 1lE\•• CI..... STAT.
ANN. art 670Il-1 (Vernon 1977). That statute directs that "any person" com.·ictcd of
driving while intoxicated is to be assessed punishment to include confinement for
three Clays to two years, subject to the court's discretion to commute tJle confinement
portion of the sentence to a probation period. ld. TEX. REV. CN. STAT. A....-x. rut. 67011-4
(Vernon, 1977) however, provides that certain minors are not subject to the confinement portion of the punishment. Males aged 14 to 16 years and females aged 14 to
17 years are subject only to fine. ld.
17!. 541 S.W.2d at 168.
172. ld. at 170.
173. 488 S.W.2d 434 (Te.... Crim. App. 1973).
174. ld. at 438.
175. 541 S.W.2d at 168.
HeinOnline -- 15 Hous. L. Rev. 573 1977-1978
574
HOUSTON LAW REVIEW
[Vol. 15:537
sex stereotyping unsupported by fact. The individual culpability of male
and female drunk drivers must be identical, and there is no reason to
believe that drunk driving by 17-year-old females is any less dangerous
to other motorists and pedestrians than drunk driving by 17-year-old males.
Hence, the sex-based difference in punishment can be explained only by
the possible effects of punishment upon male and female defendants; that
17-year-old males, because they are males, require either the greater deterrence of possible confinement or the greater rehabilitative shock of actual
confinement than do 17-year-old females. Absent any evidence suggesting
a basis in fact for such a belief, this proposition is nothing more than a
sex-stereotype of males and females. Referring to its earlier decision in MCltthews, the court of criminal appeals concluded that the sex-based differential challenged in Tullos was irrational and unreasonable and was
therefore unconstitutional.176
In Finley v. State,177 the "rape case," the same court held that sex-bused
classifications challenged under the Texas ERA would be subjected to the
"reasonable inequality" test,178 the least restrictive of three tests which
might be applied and the test which provides the least protection against
sex-stereotyping. The same test was applied in Tullos. In Finley the court
found the sex-based classification reasonable, but in Tullos, the sex-based
classification was found unreasonable. If the sex-based difference in punishment cannot be justified under the least restrictive "reasonable inequality" test, then certainly it could never be justified under the more restrictive "compelling interest" test or the absolute "plain language" test.
Although the petitioner in Tullos prevailed on the merits of his constitutional claim, his victory was surely of small comfort, for the court
elected to remedy the constitutional violation by extending the risk of
confinement to 17-year-old females. l79 No reason is given for extending
the risk of confinement to females rather than removing the risk of confinement for males. lSO Because the petitioner in Tullos was male, the trial
court's order denying relief from confinement was affirmed.
While the court's remedy corrects the forbidden inequality, the remedy
is contrary to the general remedial principle suggested earlier in this
article, that the party disfavored by the unconstitutional classification
should receive the benefits enjoyed by those favored by the classification.
The Tullos remedy subjects the favored female sex to the burdens suffered
by the disfavored male sex. Because the Texas ERA guarantees only equality of treatment, the Tullos remedy does not offend the state constitution. As
176. Id.
177. 527 S.W.2d 553 (Tex. Crim. App. 1977).
178. Id. at 556.
179. 541 S.W.2d at 170.
180. Although the court reviews the statutory history. no reason is given for
concluding that 17-year-old females should now be subjected to confinement for drunk
driving rather than exempting 17-year-old males from confinement.
HeinOnline -- 15 Hous. L. Rev. 574 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
575
a question of policy, however, it seems that the male petitioner should
enjoy the fruits of his victory on the merits by receiving the benefits
enjoyed by females. He also performed a valuable service for all Texans
by causing correction of the statute, thus ensuring that Texas statutes conform, as they must, to the Texas Constitution. Othenvise, after Tullos,
there is no reason why any victim of unconstitutional sex discrimination
should assume the expense and inconvenience of trial and appeal \\ hen
nothing of benefit is gained. Had the male petitioner in Tullos known in
advance that he, a victim of unconstitutional sex discrimination, would
secure no personal benefit from the litigation even when he prevailed on
the merits, it seems doubtful that he would have undertaken litigation to
vindicate denial of his constitutional rights. Females, the favored sex, will
hardly complain if they are not subject to confinement for drunk driving,
but males, the disfavored sex, have no reason to litigate because they
will not receive the benefits enjoyed by the favored sex. It is therefore submitted that in every sex discrimination case arising under the Texas ERA,
the plaintiff who is a victim of unconstitutional discrimination and prevails
on the merits should receive the benefits enjoyed by the favored sex. The
reverse remedial rule, that the burdens suffered by the disfavored se.x
will be extended to the favored sex, should be used only in those rare cases
where necessary to avoid grave harm to the state. The state would suffer
little harm in Tullos if 17-year-old males, like 17-year-old females, were
not subject to confinement for drunk driving until the legislature ne.xt convened and then decided if all 17-year-old drunk drivers, or none, should
be subjected to confinement.
L. The F ootbaU Case
The next appellate case arising under the sex equality provision of the
Texas ERA was Junior FootbaU Association v. Gaudet.lsi In Gaudet, a
female child was denied participation in the defendant's football program
solely because of her sex. The girl prevailed in the trial court, where
the defendant-football association was ordered to allow her to participate
until she reached puberty.182 The defendant-football association appealed,
and the appellate court reversed the judgment of the trial court and dissolved the temporary injunction. l83
The text of the Texas ERA reveals that a violation of the constitutional
guarantee of sex equality is composed of two separate elements. First,
the discrimination complained of must be based on se.x. Second, if the
discrimination is based on sex, the discrimination must occur "under the
law" as the amendment requires. The trial court was satisfied that the
female plaintiff was excluded from the football program solely because
181. 546 S.W.2d 70 (Tex. Civ. App.-Beaumont 1976, no writ).
182. ld. at 70.
183. ld. at 71.
HeinOnline -- 15 Hous. L. Rev. 575 1977-1978
HOUSTON LAW REVIEW
576
[Vol. 15:537
of her sex, and this indispensable finding of sex discrimination was not
challenged on appeal. Her case foundered on the crucial second element,
for the appellate court concluded that the sex discrimination had not
occurred "under the law" as the Texas ERA requires. 184
Of the thirteen decisions reviewed in this article, only Gal/det and
White,'85 consider whether the sex discrimination complained of has
occurred "under the law." The White court avoided decision on procedural
grounds,186 so Gaudet is the only case deciding the constitutional question
on the merits. In the other cases reviewed in this article, the parties and
the courts apparently assumed that the defendant had acted "under tho
law," because the issue in these cases is whether sex discrimination had
occurred, or whether proven sex discrimination was nevertheless permissible under the constitutional guarantee of sex equality.
In dealing with the issue of whether the sex discrimination suffered
by the plaintiff-appellee had occurred "under the law," the Gaudet court
declared that the constitutional phrase "under the law" requires sex discrimination which "is state action" or results through "private conduct that is
encouraged by, enabled by, or closely interrelated in function with state
action."187 This interpretation of the phrase "under the law" is supported
by commentary and two federal cases deciding whether private conduct
was "state action" for purposes of the fourteenth amendment to the United
States Constitution. 188 After reciting the facts that the football association
was chartered by the state as a non-profit corporation and used public
school grounds and a city park for practice and games, the Gaudet court
said, "We do not regard this as state action, or private conduct closely interrelated in function with state action."189
The court's resolution of the constitutional issue in Gaudet is singularly
disappointing. The court never explains why the state constitutional phrase
"under the law" should be equated with the "state action" required by the
federal courts to find a violation of the fourteenth amendment to the
United States Constitution. The court never explains why "private" sex
discrimination, based on the facts shown, is not "private conduct closely
interrelated in function with state action." The court never explains why
"private" sex discrimination, based on the facts shown, is not "encouraged
or enabled by" state action, even assuming that "state action" in federal
cases is synonymous with the phrase "under the law" in the Texas ERA. In
sum, the court's holding in Gaudet is nothing more than an unexplained
184.
ld.
185. White v. Corpus Christi Little Misses Kickball Ass'n, 526 S.W.2d 766, 708
(Tex. Civ. App.-Corpus Christi 1975, no writ).
186. [d. at 768-69 (failure to bring forward a statement of facts).
187. 546 S.W.2d at 71.
188. Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-22 (1961); Simkins
v. Moses H. Cone Mem. Hosp., 323 F.2d 959, 967-69 (4th Cir. 1963); Comment, An
Overview of the Equal Rights Amendment in Texas, 11 Hoos. L. REV. 136, 145 (1973).
189. 546 S.W.2d at 71.
HeinOnline -- 15 Hous. L. Rev. 576 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
577
conclusion. Judicial conclusions may not require explanation when the
facts and law of a particular case lead obviously and irresistibly to a certain
result, but Gaudet is scarcely such a case. This criticism of the court's
opinion in Gaudet is not directed to the result, but primarily to the m('ans
by which the court reached its conclusion that the private sex discrimination had not occurred "under the law."
The fourteenth amendment to the United States Constitution declares
that no state shall deny to any person "the equal protection of the luws."ll1)
The Texas ERA provides that "equality under the law shall not be denied
or abridged because of sex."191 Without evidence that it was the objectivc
of the Texas ERA to proscribe all sex discrimination, whether "private"
or "official," as the thirteenth amendment to the United States Constitution
proscribes aU slavery,192 the phrase "under the law" is a limitation upon the
constitutional guarantee of sex equality. Sex discrimination is not forbidden
by the Texas ERA unless it occurs "under the law." Since the Civil Rights
CasesI 93 were decided nearly a century ago, the United States Supremc
Court has applied a similar limitation to cases of discrimination presented
under the fourteenth amendment to United States Constitution. Discrimination, usually race disCrimination, is not forbidden by the fourteenth amendment unless the state perpetrates the discrimination. 1M
According to the Gaudet court, the guarantees of the fourteenth
amendment and the Texas ERA are violated by "official" discrimination
but not by "private" discrimination. I9s Deciding whether the discrimination
complained of is, under the facts of a particular case, "official" or "private"
is often a most difficult constitutional question, to which a bewildering
array of United States Supreme Court decisions will attest. lOO For example,
if the girl in Gaudet had challenged a state statute forbidding any female
to play football, the sex discrimination by statute is clearly "official" and
occurs "under the law." Conversely, if the girl in Gaudet had been excluded
from a person's home solely because of her sex, the sex discrimination has
been purely "private" and has not occurred "under the law," though the law
might recognize the householder's "right" to discriminate privately on the
190. U.S. CONST. amend. XIV, § l.
19l. TEX. CONST. art. I, § 3a.
192. U.S. Const. amend. XIII. "Neither slavery nor involuntary servitude . . .
shall exist within the United States, or any place subject to their jurisdiction." ld. § 1.
193. 109 U.S. 3 (1883).
194. E.g., Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961). The
Court stated: "[P]rivate conduct abridging individual rights does no violence to the
Equal Protection Clause unless to some significant e.'dent the State in any of its
manifestations has been found to have become involved in it." Id.
195. 546 S.W.2d at 7l.
196. E.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974); ~foose
Lodge No. 107 v. Irvis, 407 U.S. 163 (1972); Reitman v. Mulkey, 387 U.S. 369 (1967);
Evans v. Newton, 382 U.S. 296 (I966).
HeinOnline -- 15 Hous. L. Rev. 577 1977-1978
578
HOUSTON LAW REVIEW
[Vol. 15:537
basis of sex.l07
These examples are easy, but the facts of Gaudet are not so simple.
The state had "officially" chartered the football association as a non-profit
corporation. Presumably the association derives benefits from corporate
status, and the state thereby may have "encouraged and enabled" the sexdiscriminatory practices of this non-profit corporation. If not, why not?
The football association practiced on public school grounds. A public
school district is a political subdivision of the state and operates according
to statute. Presumably the football association derives benefits from the
use, probably rent-free, of public school grounds. Even greater benefits are
conferred by the school district if it were shown that the football association was given exclusive use of certain practice areas at specified hours.
Has not the local public school district "officially encouraged and enabled"
the sex discriminatory practices of the football association? If not, why not?
Similar questions concerning the use of a city park for the football games
arise. Is not the city, also an "official" political subdivision of the state,
"encouraging and enabling" the sex-discriminatory practices of the football
association. If not, why not? Taking all these facts together, coulS it not
be said that the football association received so many benefits from "official" sources, and was so dependent upon "official" cooperation, that its
"private" sex discrimination had become "official" sex discrimination for
purposes of the Texas ERA? If not, why not? Recalling that the Texas ERA
also guarantees racial equality "under the law," would the result in Gaudet
have been different if the plaintiff were not a female but rather a black
male excluded from participation in the defendant's football program solely
for reason of his race? The court's opinion in Gaudet is deficient because
it simply avoids the hard questions and offers an unexplained conclusion
in place of a reasoned analysis of the facts and the objectives of the Texas
ERA. Although no single formula can be devised to avoid a case-by-case
review and analysis of the facts when the court must decide whether the
sex discrimination complained of is "official" or "private" for purposes of the
Texas ERA, the Texas courts should not avoid hard questions with simple
answers.
The foregoing discussion is premised on the assumption that the
federal state-action test for cases arising under the fourteenth amendment
to the United States Constitution is, as the appellate court decided in
Gaudet, the proper test for deciding when sex discrimination has occurred
"under the law" for purposes of the Texas ERA.19B But the federal state-
197. Ct. Shelley v. Kraemer, 334 U.S. 1, 13-14 (1948) (private restrictive covenants excluding designated races from ownership of real property). Even thou$!h tho
law may recognize the householder's right to discriminate such a "legal right" to
discriminate actually protects the householder's constitution;;! rights of association and
privacy in the home. See Stanley v. Georgia, 394 U.S. 557, 565 (1969) (recognizing tho
constitutional right to privacy in one's home).
198. 546 S.W.2d at 71.
HeinOnline -- 15 Hous. L. Rev. 578 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
579
action test does not exhaust the possible interpretations of the phrase
"under the law" in the Texas ERA. Mindful that the Texas courts are not
bound by federal cases interpreting the fourteenth amendment to the
United States Constitution, at least three additional interpretations of the
phrase "under the law" are possible, two of which are more restrictive
than the state-action test and one of which is less restrictive.
The first and most restrictive interpretation would define the phrase
"under the law" as if it read "under statute," thus confining the guarantee
of sex equality to a narrow guarantee of sex-neutral statutes. Under this
interpretation, the state, it agencies, instrumentalities, political subdivisions,
and all public officers and employees would be free to discriminate on the
basis of sex, because only statutory sex discrimination by the legislature
would be forbidden. This interpretation should be rejected, because
it is wholly inconsistent with the Texas ERA. The Texas ERA represents
a fundamental reordering of values within the state. As part of the state
constitution, the Texas ERA expresses the policy of the state, not merely
legislative, executive, or judicial policy. The word "law" in the phrase
"under the law" must surely encompass more than statutes. Judicial decisions are law; city ordinances are law; rules and regulations of administrative agencies, state-supported colleges and universities, and public school
districts are law. To confine the constitutional guarantee of sex equality
to a narrow guarantee of sex-neutral statutes would distort the meaning
of the word iaw," would allow the state, its political subdivisions and
public officers and employees to exercise their lawful authority in a manner
which could never be approved by statute, and would work a monstrous
fraud on the people of Texas by substantially nullifying the Texas ERA.
The ne>..1: possible interpretation of the phrase "under the law" would
proscribe all forms of sex discrimination actually perpetrated by the state,
its agencies, instrumentalities and political subdivisions, and by all public
officers and employees. Less restrictive than the preceding interpretation,
this interpretation proscribes all forms of "official" discrimination on the
basis of sex, whether the discrimination results from statute, ordinance, rule
or regulation, or "official" policy. This interpretation is more restrictive
than the state action test adopted in Gaudet, because the phrase "under the
law" would not proscribe official encouragement or approval of private
sex discrimination. As applied to the phrase "under the law" in the Texas
ERA, this interpretation should also be rejected. Again, the Texas ERA represents the policy of the state, and the policy of the state may be given
effect only through the lawful authority of public officers and employees
who act for the state and represent the authority of the state. "Then the
policy of the state proscribes sex discrimination, the authority and prestige
of the state should never be used to encourage or approve what the state's
policy condemns. Only an odd perversion of the state constitution would
permit the state to renounce its constitutional policy of sex equality by
encouraging or approving private sex discrimination.
HeinOnline -- 15 Hous. L. Rev. 579 1977-1978
580
HOUSTON LAW REVIEW
[Vol. 15:537
A third and less restrictive interpretation of the phrase "under the
law" in the Texas ERA is the interpretation adopted by the appellate court
in Gaudet, in which the phrase "under the law" is equated with the stateaction test developed in a number of federal decisions interpreting the fourteenth amendment to the United States Constitution. Recognizing that judicial adoption of the federal state-action test is a different matter from tho
application of the state-action test to the facts of Gaudet, the state-action
test is an acceptable, though not necessarily preferred, interpretation of the
phrase "under the law" in the Texas ERA. An elaborate review of the
perplexing state-action cases decided by the federal courts is beyond
the scope of this article, and because each case is decided upon its particular facts, would only confuse the major issue presented in Gaudet. However, stated briefly and generally, the federal state-action test applied under
the fourteenth amendment reaches all forms of "official" discrimination and
additionally proscribes all significant "official" encouragement or approval
of "private" discrimination.199 Applying this general state-action test to the
Texas ERA results in an interpretation of the phrase "under the law" which
subjects all forms of "official" sex discrimination to constitutional review
and additionally subjects all forms of "official" encouragement or approval
of "private" sex discrimination to constitutional review. The state's policy of
sex equality is vindicated because the authority of the state, however manifested, may not be used to discriminate on the basis of sex, nor may it
encourage or approve private sex discrimination. The state's policy toward
private activity is neutral, neither approving nor condemning private sex
discrimination. This interpretation of the phrase "under the law" in the
Texas ERA, which the court adopted and purportedly applied in Gaudet,
is minimally consistent with the state's constitutional policy of sex equality.
A fourth and final interpretation of the phrase "under the law" in
the Texas ERA, an interpretation not mentioned by the court in Gaudet,
would subject aU forms of "official" and "private" discrimination to the
constitutional guarantee of sex equality. This interpretation combines the
most expansive definition of the word '1aw" with the most expansive view
of the state's police power to produce an interpretation of the Texas ERA
authorizing the state courts to actively discourage, condemn, and invalidate
private sex discrimination. No showing of "official" encouragement or
approval would be required to invalidate private sex discrimination, though
the defendant may offer in defense other state or federal constitutional
guarantees to validate the private sex discrimination. 2OO
199. See, e.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173-77 (1972);
Reibnan v. Mulkey, 387 U.S. 369, 380-81 (1967); Burton v. Wilmington Parking Auth.,
365 U.S. 715, 721-22 (1961).
200. This interpretation of the Texas ERA forbids private sex-based discrimination unless the party who discriminates is exercising a conflicting constitutional right
which, under the particular facts, should prevail over the constitutional prohibition
of private sex-based discrimination.
HeinOnline -- 15 Hous. L. Rev. 580 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
581
To illustrate this fourth interpretation of the Texas ERA, assume that
the owner of a Texas auto repair shop refuses to hire a woman who is
fully qualified as a mechanic. Because the shop employs only five persons,
no federal statute applies.201 No facts show any form of "official" encour-_
agement or approval of the employer's private sex discrimination. The
woman, relying on the Texas ERA, sues the private employer, seeking
equitable relief or damages. H the trial court holds, in accordance with
the common law, that no cause of action exists because in the absence of
statute the employer is free to refuse employment to whomever he chooses
for any reason or no reason, has not the woman been denied equality "under
the law" because of sex? Even if the court's holding merely declares the
common law, it is still the court and the '1aw" which have approved this
private denial of sex equality. The trial court is certainly an "official"
representative of the state's authority, and the common law is surely "law."
Dismissal of the woman's suit contravenes the Texas ERA because this
palpable though private denial of sex equality is approved by law. Returning to the facts of Gaudet and applying the foregoing interpretation of the
Texas ERA, the football association's "private" sex discrimination, heretofore permissible under the common law, is no longer permissible under
the state constitution. The association's use of public school grounds and
a city park and its non-profit corporate charter are facts without legal
relevance.
Consideration of the state's police power makes this fourth interpretation of the Texas ERA more plausible, though scarcely less controversial.
Even before the Texas ERA was approved in 1972, the state legislature
might have exercised its police powers to enact statutes prohibiting private
sex discrimination, subject only to constitutional limitations upon legislative authority.202 However, the state legislature has not enacted such statutes before or after the adoption of the Texas ERA, though the Texas
ERA is now an ample constitutional basis for such an exercise of the police
power.
Assuming that the Texas Legislature possesses this police power but
has not chosen to exercise it, the text of the Texas ERA assumes new significance. The final sentence of the Texas ERA specifically declares that the
amendment is "self-operative,"203 a provision which rather clearly invites
the Texas courts to give immediate substance to the constitutional guarantee of sex equality without additional legislative or e.xecutive action. The
201. 42 U.S.C. § 2000e (1970).
E.g., District of Columbia v. John R. Thompson Co., 346 U.S. 100, 110
( 1953) ( upholding law making discrimination by restaurant owners or managers
against blacks a crime in the District of Columbia); Burks v. POPI?Y Constr. Co., FSl
Cal. 2d 463, 370 P.2d 313, 317, 319-20, 20 CaL Rptr. 609 (1962) (upholding state
law prohibiting private racial discrimination). See alsO Heart of Atlanta Motel v. United
States, 379 U.S. 241, 259 n.8 (1964) (listing statutes of 32 states which prohibit
private racial discrimination).
203. TEX. CONST. art. I, § 3a.
202.
HeinOnline -- 15 Hous. L. Rev. 581 1977-1978
HOUSTON LAW REVIEW
582
[Vol. 15:537
"self-operative" provision may reflect awareness that the legislative and
executive branches might not be moved to implement the guarantee of sex
equality for reasons of indifference, hostility, or preoccupation with otlwr
matters. Implementation of the Texas ERA was therefore a burden thrust
primarily upon the Texas judiciary. Because the Texas ERA guarantees
sex equality "under the law," it hardly seems inconsistent with the state
constitution to recommend that the Texas courts invalidate private sex
discrimination on a case-by-case basis when the state legislature might
proscribe private sex discrimination by statute.
The hypothetical Texas employer and the non-hypothetical football
association in Gaudet might object to a statute prohibiting their private
sex discrimination, but it is axiomatic that an exercise of the police power
is often resented by those persons whose freedom to do as they please is
circumscribed by law for the public welfare. A judicial decision interpreting
the constitutional phrase "under the law" to proscribe private sex discrimination is consistent with the letter and the spirit of the Texas ERA, though
doubtlessly competing state and federal constitutional guarantees-the
rights of privacy, association or religious freedom, for example-would be
asserted by those defendants who desire to continue private discrimination on the basis of sex. The United States Supreme Court has decided
cases presenting an apparent collision of conflicting constitutional rights,204
and there is no reason to believe the Texas courts cannot resolve similar
cases arising under the Texas ERA.
M.
The Jury Case
This five-year review of appellate cases arising under the sex equality
provision of the Texas ERA since its adoption in November 1972 ends
with Johnson v. State. 205 In Johnson, the male defendant challenged his
conviction on the ground that the state juror exemption statute200 violated
certain provisions of the federal and state constitutions, including the
Texas ERA. Under the statute, an exemption from jury service may be
claimed by "all females who have legal custody of a child or children under
the age of ten (10) years."207 The appellant argued that the sex-based
exemption: (1) deprived him a jury representing a fair cross-section of
the community, and (2) unconstitutionally discriminated against male jurors
who have legal custody of a child under ten years of age. 208 Even if the
204. See, e.g., Runyon v. McCrary, 427 U.S. 160 (1976) (first amendment lISSOciational rights versus fifth amendment equal protection); Nebrnskn Press Ass' n v.
Stuart, 427 U.S. 539 (1976) (first amendment freedom of the press versus sixth
amendment right to an impartial jury); Norwood v. Harrison, 413 U.S. 455 (1973)
(first amendment freedom of religion versus fourteenth amendment equal protection).
205. 548 S.W.2d 700 (Tex. Crim. App. 1977).
206. True. REv. ClV. STAT. ANN. art. 2135 (Vernon Supp. 1978).
207. Id. § 2.
208. 548 S.W.2d at 702-03.
HeinOnline -- 15 Hous. L. Rev. 582 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
583
child-care exemption applied equally to men and women having custody
of a child under ten, the appellant's objection that the sex-neutral exemption denied him a representative jury would remain. Because the subject
of this article is sex discrimination and not the composition of juries, the
effect of the sex-based exemption upon the constitutional right to han'
a representative jury is not discussed.
In lohnson the appellant argued that "it is unreasonable for the
Legislature to presume that only women have the responsibility for the
care of children under the age of ten."209 Although this sex discrimination
argument would be more compelling if presented by a man with custody of
a child under ten who was summoned for jury service rather than by a convicted defendant, the sex-based inequality in the exemption is palpable.
A WOman with custody of a child under ten is presumed to suffer hardship
if called for jury service. She need only declare that she has cllstody of a
child under ten to be excused from jury service, regardless of whether
serving on a jury would actually create a hardship for care of the child.
A man with custody of a child under ten enjoys no similar statutory presumption, though he might be e:'i:cused upon a sho\ving of actual hardship
to the presiding judge. Men and women similarly situated, having legal
custody of a child under ten years of age, are treated unequally because
of sex.
The court of criminal appeals responded to the appellant's sex discrimination argument by citing statistics demonstrating that some women with
children are employed in the labor force while some women with children
are not employed in the labor force. 21o These data indicated to the court
that, despite the number of women with children employed in the labor
force, a "great many women with children arc still primarily engaged in caring for their children" during normal business hours.211 The court therefore
concluded that the sex-based exemption from jury service "is reasonable,"
and that the state has a "legitimate interest" in allo\ving women with custody of children under ten to claim the exemption.212 Unfortunately, the
court's analysis and conclusion fail to answer the sex-based inequality issue
presented under the Texas ERA. Perhaps the appellant himself did not
understand the sex discrimination question and failed to convey its substance to the court, but certainly nothing in the lohnson opinion indicates
that the court perceived the true nature of the sex discrimination question.
The appellant in lohnson argued that a statutory exemption applying
only to females violated the Texas ERA because it was unreasonable to
presume that only women have responsibility for the care of children under
ten.213 The court responded that it was reasonable to exempt all women
209. Id. at 703 (emphasis added).
210. Id.
211. Id.
212. Id.
213. Id.
HeinOnline -- 15 Hous. L. Rev. 583 1977-1978
584
HOUSTON LAW REVIEW
[Vol. 15:537
with children under ten because some women remain at home to care for
their children during normal business hours. 214 This, however, is not the
constitutional question. The constitutional question is whether men who
have legal custody of a child under ten should, like women in the same circumstances, be able to claim the exemption from jury service.
The sex-based exemption challenged in lohnson is a classic stereotype
based on a "conventional" family situation where the male parent is the
breadwinner and is not present in the home to care for the children during
normal business hours, and where the female parent remains at homo
caring for the children during this time. Undoubtedly many Texas families
fit the stereotype, but certainly not all families. In some families, both malo
and female parents are employed outside the home during normal business
hours, leaving care of the children to babysitters, childcare centers, or other
family members. In some families there is no female parent so that only
a male has '1egal custody" of the child, but the male parent may bo
employed outside the home or may remain at home to care for the child
during normal business hours. Similarly, in a family with no male parent,
the female parent may be employed outside the home or may remain at
home to care for the child during normal business hours. In some families
the female parent may be employed outside the home but the male parent
remains at home to care for the children.
Although the different permutations of the "conventional" family situation are endless, the foregoing examples reveal that males, like females,
may have primary responsibility for the care of children under ten years
of age. Under the statutory exemption, men with custody of children under
ten may be excused from jury service only upon showing actual hardship,
but all women with custody of children under ten may claim the exemption
without showing actual hardship because hardship for women is presumed.
As applied, the statutory exemption for all women with custody of children
under ten is both overinclusive and underinclusive with respect to the
legislative desire to relieve hardship. Women who suffer no hardship may
claim the exemption simply because they do not wish to be bothered with
jury service, but men who suffer hardship must demonstrate that hardship.
The sex-based exemption includes some women who do not "deserve" it
and excludes some men who do "deserve" it.
Had the court in lohnson focused upon the correct sex discrimination
question, its prior decisions in Finl ey215 and Tullos2 16 would indicate that
sex-based inequality will be subjected to the "reasonable inequality" test
under the Texas ERA. Is the sex-based exemption, which favors females
and disfavors males, reasonable? Although every family in Texas will not
fit the conventional family stereotype upon which the exemption is based,
214. Id.
215. Finley v. State, 527 S.W.2d 553 (Tex. Crim. App. 1975).
216. Ex parte Tullos, 541 S.W.2d 167 (Tex. Crim. App. 1976).
HeinOnline -- 15 Hous. L. Rev. 584 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
it is probably true that many more women than men have the responsibility
of caring for children under ten years of age during normal business hours.
If this is so, then it could be «reasonable" for the legislature to take account
of this fact and to presume hardship for all females with custody of children
under ten, leaving males with custody of children under ten the remedy
of demonstrating actual hardship on an individual basis. Whether the sexbased exemption is "reasonable" or "unreasonable," nothing in the Johnson
opinion suggests that the court of criminal appeals would have rejected
the reasonable inequality test if it had responded to the appellant's argument that the sex-based exemption violates the Texas ERA.
The sex-based exemption challenged in lohnson could not survive the
"compelling interest" test. VVhile the state's general interest in avoiding
hardship for potential jurors who have custody of a child under ten need
not be characterized as compelling, the sex-based inequality must be justified by a compelling interest. Even when tlle state's general objective is
permissible, the means adopted to secure that end must conform to tlle
state constitution. If permissible sex stereotypes are excluded, tlle remaining reasons justifying a statutory presumption of hardship for all women
with custody of children under ten must also apply equally to men in like
circumstances. Alternatively, whatever reasons might justify requiring men
,vith custody of children under ten to demonstrate actual hardship also
must apply equally to women in like circumstances. The state might assert
that administrative convenience and the efficient use of judicial resources
justify the sex-based inequality present in the statutory presumption of
hardship for women because many more women than men have primary
responsibility for the care of children under ten during normal business
hours. Requiring each woman to demonstrate actual hardship would consume too much time, but, the state might argue, so few men have primary
responsibility for the care of children during normal business hours that
these rare cases of hardship for men are best handled by an individual
showing of hardship.217 The preceding analysis might satisfy a "reasonable
inequality" test, but it should not be accepted under the more restrictive
"compelling interest" test.218 Sex stereotypes are often perpetuated by administrative practices, and administrative practices often reflect sex stereotypes. If a major objective of the sex equality provision of the Texas ERA is
to free male and female Texans of the burdens of sex stereotyping accumulated over the centuries in Anglo-American law, administrative convenience
and judicial efficiency should not be considered compelling reasons for continuing a sex-based inequality plainly forbidden by the state constitution. 1£
administrative convenience does not yield to the constitutional guarantee
217. This kind of argument is ve!y similar to the justification of "administr.lIivc
convenience" which has been held insufficient to justify se.'I:-bascd classifications. Frontiero v. Richardson, 411 U.S. 677, 688-90 (1973) (plurality opinion).
218. ld.
HeinOnline -- 15 Hous. L. Rev. 585 1977-1978
586
HOUSTON LAW REVIEW
[Vol. 15:537
of sex equality under law, the constitutional guarantee will be nullified in
large measure because it will be honored only when it is "convenient." Although some Texans may wish it were otherwise, adoption of the Texas
ERA not only guaranteed sex equality in the future but also rejected past
traditions, customs, and practices. Administrative practices must be conformed to the constitution, and no claim of "administrative inconvenienco"
caused by giving effect to the constitutional guarantee should ever be
characterized as compelling. Finally, the sex-based inequality challenged
in lohnson could never survive the "plain language" test under the Texas
ERA, for the plain language test invalidates any and all forms of sex-based
inequality, regardless of any reason, compelling or not, advanced to justify
the inequality.
Perhaps the sex-based exemption that survived constitutional challenge
in lohnson was appropriate for another time, but that time ended when the
Texas ERA was adopted in November 1972. Although the court of criminal
appeals has sustained this stereotypical relic, the legislature should conform
the exemption to the text and objectives of the Texas ERA. Assuming that
the legislature desires to continue a child-care hardship exemption, an
amended statute might exempt "any person who has legal custody of a child
or children under ten years of age and who personally cares for such child
or children during normal business hours." The proposed revision emphasizes the potential juror's personal care for a child under ten. For example.
if both the male and female parent are employed outside the home and tho
child is cared for by others during normal business hours, neither parent
may claim the exemption. But a male or a female parent who does remain
at home and personally cares for the child during normal business hours
may claim the exemption. Unusual jury service is not covered by the proposed revision. If a person, male or female, is summoned for service on a
sequestered jury, that person must demonstrate actual hardship to the presiding judge.
lohnson v. State is the last of thirteen decisions covered in this five-year
review of cases arising under the sex equality provision of the Texas ERA.
The court's inexplicable failure to grasp the real sex discrimination issue
in lohnson is disappointing. Perhaps the legislature will correct the sexbased inequality which survived review in the court of criminal appeals.
III. A PRoPOSED METHODOLOGY
A proposed methodology for future cases arising under the sex equality
provision of the Texas ERA is presented in a discussion of four hypothetical
cases. As stated earlier in this article, attempting to resolve sex discriminaton cases by a single, all-purpose test, be it a "plain language," "compelling
interest," or "reasonable inequality" test, will undermine the objectives of
the Texas ERA. Acceptance of a single, all-purpose test would of course
simplify the judicial process, and simplification of any complex process
HeinOnline -- 15 Hous. L. Rev. 586 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
587
is not objectionable per se. Simplification is objectionable, however, when
the process of simplification threatens destruction of individual rights guaranteed in the state constitution. The diversity and complexity of cases which
have arisen and will arise under the Texas ERA suggest that rejection of a
single, all-purpose test may actually clarify the decisional process by causing the courts to examine more carefully the facts of the case, the evidence,
the objectives of the Texas ERA and, perhaps, the judges' personal views
regarding sex equality.
Before discussing the four hypothetical cases, additional introductory
observations, which explain the assumptions upon which the proposed methodology is based, are appropriate. The sex equality provision of the Texas
ERA is not simply ,vindow dressing added to the state constitution as a
sop for a few overwrought but vocal citizens. Adoption of the Texas ERA,
considered in its contemporary social, political, and legal context, is inconsistent with a view that nothing has changed or should change. The law
cannot be changed and yet remain unchanged, unless the plain language
of the state constitution is ignored. Amending the state constitution is
scarcely necessary to preserve the status quo ante, and inclusion of a specific and unqualified guarantee of sex equality seems a peculiar means
to perpetuate the sex-based discrimination of the past. Finally, an obvious
but occasionally overlooked fact should be noted. 'Vhen the law imposes
burdens, confers benefits, or othenvise distinguishes between persons because of sex, the basis for different treatment, sex, is a characteristic over
which a person has no control, an "immutable characteristic determined
solely by the accident of birth."219
A. The General Principle-Case No. I.
A female student in a public high school, ,vith parental pemusslOn,
desires to try out for the school's football team. Solely for reason of her sex,
she is denied the opportunity to participate in the tryout by the coach, the
principal, the superintendent, and the school board. The girl is taller and
heavier than an average female of her age, and she is also taller and heavier
than at least ten male students who were allowed to tryout for the football
team. The school has no football team for girls. After the school board
denies her request to participate in the team tryout, the girl retains an
attorney and files suit against the school district, complaining that she has
been denied "equality under the law because of sex" in violation of the
Texas ERA.220 Pending trial, the school board hastily establishes and publicizes a "separate but equal" football program for girls, but the only girl
who desires to participate is the girl who has been excluded from the tryout
219. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion).
220. These facts are suggested by Damn v. Gould, 85 Wash. 2d 859, 540 P.2d
882 (1975).
HeinOnline -- 15 Hous. L. Rev. 587 1977-1978
588
HOUSTON LAW REVIEW
[Vol. 15:537
for the male football team. Since one person cannot play football alone,
the female football program is abandoned.
The question presented is solely whether the girl should be given an
equal opportunity to demonstrate her football abilities in competition with
all other students, male or female, who desire to try out for the team. She
is not asserting a "right" to be selected for the team, but she does assert
the "right" to try out for the team and to be selected if her demonstrated
athletic abilities warrant selection for the team.
The girl's reasons for playing football are immaterial to her constitutional claim. The school probably does not ask each male why he wants to
play football. And if male eligibility for a team tryout depends on "proper
reasons," whatever they might be, a female certainly may have the same
proper reasons. Whether other persons consider the girl unfeminine and
consider she and her parents strange is also irrelevant to her constihltional
right of sex equality. Had boys and girls routinely participated on mixedgender football teams for the past 25 years, few persons would probably
think the girl strange or unfeminine in 1977. The point is that the girl
claims an individual right guaranteed to her by the state constitution. Why
should she be thought odd because she asserts her constitutional rights? If
her rights are measured by what a majority approves or disapproves, by
what a majority finds conventional or unconventional, there is obviously
no need to guarantee individual rights in the state constitution.
Fortunately, in the United States and Texas, enjoyment of individual
rights guaranteed by the basic charters of government, the United States
and Texas constitutions, is not dependent upon majority opinion. It therefore follows in this hypothetical case that the court may be required to
decide the issue of the girl's constitutional right to sex equality contrary
to the desires of a majority. Even if a substantial majority of Texans rejected
the girl's asserted right to participate in the football tryout, the court must
give effect to the plain language of the constitution, unless there is a permissible reason for not doing so. Fear of adverse majority reaction to a
decision recognizing the girl's right to sex equality could never be permissible. If the Texas ERA proves intolerable to a majority, amending the state
constitution remains an available remedy.
At trial the female plaintiff must establish a prima facie case upon the
two critical elements of the alleged violation of her constitutional right to
sex equality: (1) that she has been denied equality for reason of her sex,
and (2) that the denial of sex equality has occurred "under the law."221 To
this point in the trial, no reason appears for shifting the burden of proof
to the defendant school board. Under the hypothetical facts, she certainly
will establish a prima facie case on both elements. Because public officers
and employees tell the truth under oath, the girl's prima facie case proving
221.
TEX. CONST. art. I, § 3a.
HeinOnline -- 15 Hous. L. Rev. 588 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
589
a violation of her constitutional right to sex equality, uncontradicted by th(>
defendant, should result in judgment for the plaintiff. Applying the general remedial rule, the benefits enjoyed by males should be extended to the
girl, and the defendant school board must allow her to tryout for the
football team.
But the defendant school board will not surrender quite so easily. Conceding the girl's prima facie case of sex discrimination under law, as it
must, the board will assert that this sex-based discrimination should nevertheless be held permissible and constitutional for a number of reasons,
despite the plain language of the Texas ERA. The following discussion of
reasons advanced by the defendant school board to justify the sex discrimination ,vill show that the reasons are not permissible because: (1) the reasons are based upon forbidden sex stereotypes, (2) the reasons are offered
in defense of values and interests which the Texas ERA has rendered irrelevant, or (3) the «reasons" are not reasons at all, but rather inevitable and
unavoidable consequences of a decision giving effect to the constitutional
guarantee of sex equality, consequences which the defendant school board
dislikes. As the defendant's list of reasons is reviewed, recall that a distinction should be drawn between those reasons based upon fact and those
based upon speculation. Assuming that the board's reasons represent an
affirmative defense to the plaintiffs uncontradicted proof of a violation of
her constitutional guarantee of sex equality, the defendant should bear the
burden of asserting the defense, proving the defense, and convincing the
court that the defense, if proven, requires the court to create a judicial
exception to the specific and unqualified guarantee of sex equality embodied
in the plain language of the Texas ERA.
The school board suggests that the girl cannot appreciate how rough
high school football really is, so the board may protect the girl from her
own "ignorance" by exclusion from the team tryout. One need not be a male
nor have suffered a broken arm or leg playing football to appreciate that
football is a rough sport Pervasive coverage of football by television, radio
and newspapers, plus the girl's general life e.'\-periences refute the board's
assertion. Even if there were legitimate concern that a student, whether
male or female, appearing for the team tryout failed to appreciate that football was a rough contact sport, the obvious remedy for the student's "ignorance" is information provided by the coaching staff, not exclusion from the
tryout. The school board declares that the girl may be injured playing
football. Of course the girl may be injured, perhaps seriously, but hoys arc
injured, often seriously and occasionally fatally, playing football. Boys arc
not excluded from the football program because they may be injured, so
why should girls be excluded for fear of injury?
Assuming that participation in the football tryout requires parental
permission, which the hypothetical girl has secured, female students cannot be protected against their own imprudence when males are not simi-
HeinOnline -- 15 Hous. L. Rev. 589 1977-1978
590
HOUSTON LAW REVIEW
[Vol. 15:537
larIy protected against theirs. The board's solicitude for the girl's welfare
is explained only by a forbidden sex stereotype. Risk of injury to male
players is acceptable because they are males engaged in "proper" male
activities, but a similar risk of injury to female players is not acceptable
because they are females engaged in activities not considered "proper" for
females. Viewed without the sex stereotype, the school board and the community have precisely the same objective interest in preventing (or facilitating) physical injury to public high school students, whether the student is
male Or female.
The school board may assert that a female player, because she is female,
may suffer unique gender-specific injuries of which the most obvious examples are injuries to her breasts or internal reproductive organs. The risk
of these unique gender-specific injuries therefore requires an exception to
the plain language of the Texas ERA. Phrased differently, the board's position is that male and female players alike may suffer injury, but that females
should be excluded because their injuries may be different in nature than
those suffered by male players. This argument is the classic sex stereotype,
an example of the idealized "romantic paternalism" for females that pervades American attitudes, traditions and laws. The law recognizes male
autonomy, in that the male student decides for himself whether the risk
of injury in football outweighs the potential benefits of playing football.
Female students enjoy no comparable personal autonomy. Unlike a male
student, the female is denied a personal choice because the school board
has made it for her.
If the constitutional guarantee of sex equality means anything, males
and females alike must enjoy equal personal autonomy. If males are allowed
to weigh the risks against potential benefits, females cannot be denied that
choice. If males are free to choose the risk of football injury, then females
cannot be denied that choice, even when females risk injuries of a different
nature than those risked by males.222 Emphasizing the obvious physical
differences between males and females simply obscures the true nature of
the sex discrimination presented in this hypothetical case: Males are permitted to decide for themselves, but females are not permitted to make that
same decision.
The school board might also argue that a female's periodic menstruation is a sufficient reason to exclude females from the football program
despite the plain language of the Texas ERA. Menstruation is of course a
unique gender-specific characteristic. If menstruation were offered as the
sole justification for excluding the girl from the football tryout, the board's
policy is a blanket exclusion of "all persons who menstruate." Only female
persons menstruate, so all female students are excluded.
222. Equipment is available to protect a male player's external rcproductlvl'
organs and there is no reason to believe that equipment cannot be devised to protect
a female player's breasts.
HeinOnline -- 15 Hous. L. Rev. 590 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
591
Simple hostilty to sex equality is not a permissible justification for denying sex equality, so the board's policy of excluding "persons who menstruate"
from the football program must be explained and justified by reasons independent of a desire to avoid the consequences of sex equality. \¥hether an
independent reason exists must be determined by the relationship between
menstruation and the football program when viewed against the public
policy expressed in the Texas ERA.
The only plausible relationship between menstruation and the football
program is the likelihood that a female player might, for a few days each
month, be unable to participate in team practice or a scheduled game
because she suffers discomfort or disability related to her menstrual cycle.
Because the female plaintiff in the hypothetical case already has established
a prima facie case that her guarantee of sex equality has been violated,
and because the board's policy excludes all females, the board must be
prepared to prove that all females do in fact suffer serious menstrual discomfort or disability. Even if some females suffer menstrual discomfort or
disability, that fact is not a permissible reason for excluding all females.
If a female does not suffer menstrual discomfort or disability, the policy of
menstrual exclusion cannot properly be applied to her.
Assume, however, that the female plaintiff in the hypothetical case,
though physically normal, does suffer temporary discomfort or disability
for a few days during her menstrual cycle. Would this assumed fact be
a sufficient justification for total exclusion from the football program because
she might occasionally miss a team practice or a scheduled game? The fate
of male players who suffer temporary disabilities through illness or injury
is relevant. Male players probably are not removed permanently from the
team when they suffer a temporary disability and miss a few days, or even
a few weeks, of team practice and one or two scheduled games. If a male
player otherwise merits team membership, it seems unlikely that his temporary disability justifies permanent removal from the team. A football team
traditionally carries e},:tra players on its roster against the contingency of
illness or injury. There is no reason to believe that the football team would
be destroyed if a female player occasionally were excused from team practice or a scheduled game, or that a female player whose athletic ability
othenvise merits team membership would suffer a significant and irrecoverable loss of ability if she occasionally were excused from team practice or
a scheduled game. Recalling that menstruation is a gender-specific, physical
characteristic unique to females, the board is using the unique physical
characteristic to deny all females the benefits (and risks) of participation
in the football program when it appears that the football program easily
could be structured to accommodate a female player who occasionally might
suffer menstrual discomfort or disability.
When a choice exists between exclusion because of sex and accommodation because of sex, the Texas ERA requires accommodation. Based on
HeinOnline -- 15 Hous. L. Rev. 591 1977-1978
592
HOUSTON LAW REVIEW
[Vol. 15:537
the above discussion, the school board's policy of menstrual exclusion
should be rejected for want of evidence and for hostility to the constitutional guarantee of sex equality.
The board may argue that male players are likely to "gang up" on a
female player and thus subject her to an extraordinary risk of injury. The
female plaintiff cannot be denied her constitutional rights because other
persons might abuse her for exercising them, especially when the coaching
staff and game officials have ample authority to penalize male players
who might engage in such abuse. A reciprocal argument is that male players
will be reluctant to subject a female player to the routine physical contact
expected among male players. Again, a female should not be denied her
constitutional rights because others might have peculiar reactions when sho
exercises those rights. The coaching staff should be able to handle this
problem in scrimmage while an opposing team's goal of victory should guarantee that no imprudent deference to a female player occurs.
The school board's final "reasons" for excluding females from the football program relates to logistics and morals, like overnight trips, proper
supervision of male and female players, and locker room facilities. These
arguments, like all the preceding ones, should be rejected. Presumably,
male and female players can be properly supervised by the coaching staff
during travel, and certainly separate motel or hotel rooms can be provided
for female players. Male and female high school students who desire to
engage in sexual activity scarcely need an overnight trip to do so. In any
event, an adult female could accompany the football team to provide proper
supervision for any female players. If the concern for locker room facilities
is truly legitimate, it is difficult to imagine that any high school in Texas
does not have a girls' restroom where female players could change for the
game. If there is no girls' restroom, the available locker room could be used
exclusively by males and females at different times.
Considered in their totality, the school board's "reasons" for excluding
females from the football program are based ostensibly upon concern for
the welfare of females. The board will therefore argue that the sex-based
exclusionary policy advances a legitimate governmental objective and should
be sustained because the constitutional guarantee of sex equality must be
interpreted to permit sex inequality when justified by a rational or compelling governmental interest. Contrary to the board's argument, it seems
likely that the sex-based exclusionary policy is based in large part upon hostility to the constitutional guarantee of sex equality. The board may believe
that football is not a "proper" sport for females. The Texas ERA cannot
change the board's opinion of females playing football, but if the amendment
means anything, it cannot allow the sex-stereotypical "official" opinion to
be given effect in official action. The board also may be concerned that
participation by females will affect adversely the traditional all-male football program through additional expenses or the "inconvenience" of certain
HeinOnline -- 15 Hous. L. Rev. 592 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
593
changes required to accommodate female players. If the constitutional
guarantee of sex equality means anything, it cannot be suspended simply
because giving effect-to the guarantee will result in governmental inconvenience or some degree of fiscal hardship. Governmental pmctices and
fiscal interests must be subordinated to the state constitution. Even if the
board's sole concern is the welfare of female students, the board's legitimate
objective cannot be accomplished by means of an unconstitutional sex-based
exclusionary policy. Females cannot be protected against the risks of football when males are not. Males and females alike must be excluded from
football, or males and females alike must be allowed to decide whether the
benefits of playing football outweigh the risks.
Finally, the board may fear that female participation in the traditionally all-male football program will somehow change the essential character
of this revered American institution. Even if female participation converts
the board's fear to fact, the fear and the fact have no legal significance,
for they reject the premise of the Texas ERA. The constitutional guarantee
of sex equality is not to be given effect only when a court is satisfied that
no change in attitudes, customs, laws, or institutions will result. Clumge,
whether slight or significant, whether occurring now or in the future, was
and is the objective of the Texas ERA, and change is an inevitable, una\·oidable and natural consequence of the Texas ERA. No court should refuse
to enforce the plain language of the Texas ERA because enforcement
might result in the very change that the guarantee of sex equality was
designed to produce.
This discussion of Case No.1 produces a general principle of interpretation for the sex equality provision of the Texas ERA. The General
Principle reads: The defense of countervailing interests, whether rational
or compeUing, is not recognized when a violation of the plain language
of the Texas ERA is slwwn.
This general principle of interpretation necessarily rejects those Texas
appellate cases holding that a denial of sex equality should in each case
be "balanced" against the governmental interests advanced to justify the
sex-based inequality, whether the interests are "compelling" or merely
"rational." Although this general principle of interpretation is subject to
certain limitations, as will be shown, the principle is actually a restatement
of the so-called "plain language" test. A person denied equality because
of sex has suffered a violation of his or her constitutional guarantee of sex
equality. Once this violation of the plain language of the Texas ERA is
established, the court immediately should provide the appropriate remedy,
ignoring any reasons advanced to justify the sex inequality because of their
irrelevancy. The specific and unqualified guarantee of sex equality leaves
no room for balancing a violation of the constitution against the countervailing interests advanced to justify the violation.
HeinOnline -- 15 Hous. L. Rev. 593 1977-1978
HOUSTON LAW REVIEW
594
B.
{Vol. 15:537
Principle No.1-Case No.2
The facts of this hypothetical case are suggested by Dothard v. Rawlinson,223 a recent decision by the United States Supreme Court. Although
Dothard involved a federal statute, its facts illustrate an additional problem of interpretation likely to arise under the sex equality provision of the
Texas ERA. Assume that a Texas statute provides that no person shall be
employed as a prison guard unless the applicant is at least 5 feet 2 inches
tall and weighs at least 120 pounds. A woman otherwise qualified for
employment as a prison guard is denied employment because she is only
5 feet 1 inch tall and weighs only 110 pounds. She then retains an attorney
and files suit, alleging that she has been denied equality under the law
because of sex in violation of the Texas ERA.
Unlike the facts of Case No.1, where a female was denied the opportunity to play football solely for reason of her sex, the hypothetical statute
in Case No.2 which excludes the female applicant from employment as
a prison guard is sex-neutral. The statute excludes any person, male or
female, whose height and weight are below the statutory minima. Although
the statute is sex-neutral on its face, the female applicant proves that the
effect of the statute is to exclude 41 % of all adult females but only 1%
of all adult males, and further proves that females represent 37% of the
Texas labor force but that only 13% of all Texas prison guards are female.
Males therefore represent 63% of the Texas labor force but 87% of Texas
prison guards. 224 The statutory height and weight minima, as applied,
produce a significant differential impact upon females, excluding a much
higher percentage of females (41%) than males (1%). Viewed differently,
only 59 of every 100 female applicants will qualify for employment while
99 of every 100 male applicants will qualify. Any female applicant is therefore 40% less likely to qualify than any male applicant.
To establish a violation of the Texas ERA, the female plaintiff must
prove: (1) that the discrimination complained of has occurred "under the
law," and (2) that she is denied equality for reason of her sex. The height
and weight qualifications are established by statute, so the discrimination
plainly occurs "under the law." But will the female plaintiff be able to
show that her exclusion from employment as a prison guard is based on
sex? The state's position would be that her disqualification is based on the
sex-neutral criteria of height and weight, not sex, and will support its
position by proving that 13% of Texas prison guards are female, a fact
inconsistent with a denial of equality because of sex. Despite the state's
proof that some Texas prison guards are female and that a male applicant
who does not satisfy the height and weight standards also would be excluded, the differential impact of the "sex-neutral" height and weight
223.
224.
329-30.
433 U.S. 321 (1977).
These data are adapted from those in Dothard v. Rawlinson, 433 U.S. nt
HeinOnline -- 15 Hous. L. Rev. 594 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
595
minima upon male and female applicants should, for the following reasons,
establish a prima facie violation of the sex equality provision of the Texas
ERA.
The plain language of the Texas ERA does not make a violation of its
guarantee dependent upon showing a purposeful or intentional denial of
sex equality.225 When a person alleges a denial of sex equality under the
Texas ERA, nothing in the amendment prevents a court from considering
the effects of a statute or other "official" action, as well as the purpose
of the statute or other "official" action. Even if it were conceded that
adoption of the statutory height and weight qualifications were not motivated by any purpose or intent to deny females an equal opportunity for
employment as prison guards, the grossly disproportionate exclusionary
effect upon female applicants cannot be ignored.
A statute expressly excluding all females from employment as prison
guards violates the Texas ERA in accordance with the General Principle
and is not subject to the defense of countervailing "rational" or "compelling"
interests. This is so because the statute on its face excludes all females.
The statute excluding all persons whose height and weight do not satisfy
the prescribed minima does not exclude all females, but it does exclude
many more females than males. Moreover, the differential exclusionary impact upon female applicants results from unalterable physical characteristics
over which the female applicant has no control. The sex-neutral criteria
of height and weight therefore have the effect of denying many more
females than males the benefits ofa particular livelihood for reasons of
unalterable physical characteristics over which the applicant has no control.
The language of the Texas ERA supports the view that a court cannot
and should not ignore the effects of sex-neutral "official" action. The
amendment declares that equality "shall not be denied or abridged because
of sex." The word "abridged" assumes special significance because the
state will surely argue that the height and weight requirements cannot
violate the Texas ERA when 59 of every 100 female applicants will satisfy
the requirements and when 13% of Texas prison guards are in fact female.
"Abridge" means "reduce" and an "abridgement" of equality means a
"reduction" of equality. Under the Texas ERA, a total deprivation of
equality because of sex is forbidden by the word "denied" and a reduction
in equality because of sex is forbidden by the word "abridged." Females
are not totally excluded from employment as prison guards, but the effect
of the sex-neutral height and weight requirements imposes upon females,
when compared to males, a significant reduction in equality of opportunity
225. The United States Supreme Court has held that a violation of the United
States Constitution reqnires proof of a racinlly discriminatory ~urpose. and that usc
of a race-neutral governmental regulation which produces a differential racial illlpact
does not in every case establish a prima facie violation of the United States Constitution. Washington v. Davis, 426 U.S. 229, 242-45 (1976). Te.~ courts are of COtml.'
free to adopt a different interpretation for nlleged violations of the state constitution.
HeinOnline -- 15 Hous. L. Rev. 595 1977-1978
596
HOUSTON LAW REVIEW
[Vol. 15:537
for employment as prison guards.
Even if the state agrees that the Texas ERA prohibits a reduction in
equality of opportunity, it probably will persist in its argument that the
female plaintiff nevertheless has failed to establish an indispensable clement of a constitutional violation because the reduction in equality of
opportunity of which she complains does not result "because of sex," as
the amendmment requires, but from sex-neutral height and weight qualifications. But are the effects of the sex-neutral height and weight qualifications truly different than a statute which expressly declared that 41 %
of all females and 1% of all males are disqualified from employment as
prison guards? If the plaintiff, whether male or female, is not allowed to
establish a prima facie violation of the constitutional guarantee of sex
equality by proving that reliance upon sex-neutral physical factors produces a significantly disproportionate impact upon members of one sex,
the courts invite substantial nullification of the state's constitutional public
policy of sex equality. Hostility or indifference to the constitutional gum'antee of sex equality should not be rewarded by judicial approval of
"official" action that produces a result by indirection that could not be
achieved by explicit and direct action designed to produce the same
result. Nor is there any qualitative difference in the consequences to the
41 of every 100 females who are excluded from employment, whether they
are excluded because of their height and weight or whether they are
excluded because they are females. Whatever the criterion of exclusion,
these 41 females are denied the benefits of employment, while only 1 of
every 100 males suffers denial of this beneficial employment. Circumvention of the policy and the prohibition of the Texas ERA can be accomplished too easily by the use of sex-neutral criteria to immunize the effects
of the statute from judicial scrutiny.
Finally, there is the possibility of "reluctant tokenism." Confronted
with a constitutional guarantee of sex equality, some persons responsible
for "official action," whatever its nature, may realize that the total exclusion of one sex from beneficial employment is both imprudent and impossible. For example, many females who are taller than the average adult
female may be as tall as the average adult male. This male-female overlap
in the physical characteristic of height will make it difficult to exclude
a substantial majority of females without excluding adult males of average
or slightly less than average height. If the minimum height requirement
is established at an artificial level to exclude all females, or all but a few
females, half or three-quarters of all males may also be excluded. When
it is realized that all females cannot be excluded except by criteria which
also exclude an unacceptably high percentage of males, the "sex-neutrar
criteria might be selected without reference to their relationship to tho
employment for which they are prescribed, but rather established at some
optimum level to qualify as many males as possible while excluding as
HeinOnline -- 15 Hous. L. Rev. 596 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
597
many females as possible. A statute e}.-pressly creating a virtual monopoly
in public employment for one sex or the other plainly violates the Texas
ERA. Possible use of "sex-neutral" criteria to produce the same forbidden
effect should not escape judicial scrutiny under the Texas ERA.
For the preceding reasons, a prima facie violation of the constitutional
guarantee of sex equality is established when the plaintiff proves that use
of "sex-neutral" physical criteria produces a significant differential inlpact
upon members of one sex.226 Under the facts of Case No.2, the differential
impact of the height and weight requirements produces a disproportionate
benefit for males and a disproportionate burden for females. The question
of when a differential impact is "significant" should be resolved on a caseby-case basis after full consideration of the nature of the sex-neutral criteria
and the nature of individual interests burdened by the differential impact.
If a rule of thumb is necessary, it seems that a differential impact of more
than ten percent between males and females should never be considered
insignificant, while a differential impact of less than ten percent could be
considered significant in particular cases.
Under these facts, what is the consequence of establishing a prima
facie violation of the Texas ERA by proof that the sex-neutral criteria
produce a significant differential impact upon females? Had the hypothetical statute expressly declared that 41% of all females are excluded
from employment, the court, in accordance with the General Principle,
immediately should provide a remedy, ignoring any "rational" or "compelling" countervailing interests advanced by the state to justify this
"abridgement" of equality because of sex. But the hypothetical statute
does not refer to sex, nor does the statute necessarily exclude all females
from employment as prison guards. After all, 13% of Texas prison guards
are female. Moreover, some adult males, albeit a negligible percentage,
also will be excluded by the sex-neutral height and weight criteria. Because
the statute makes no reference to an applicant's sex and because the sexneutral criteria of height and weight do not necessarily exclude all females,
226. The facts of the hypothetical case necessarily confine this proposition to
adverse differential effects resulting from use of sex-neutral p11Usicai criterin. Because
there is no reason to believe that persons of one se.'I: arc generally less intelligent than
persons of the other sex, it seems unlikely that significant differential effects would
be noted between the se.'l:es when intelligence alone is the qualifying criterion. Conversely, when the qualifying eriterion is based upon an applicant's general or specific
aptitudes, skiIIs or knowledge, there is reason to suspect that adverse differential effects
may be suffered by persons of one sex or the other. For e.=ple, an applicant for an
auto mechanic's job with a governmental employer may be required to demonstrate
a certain level of knowledge about motor vehicles. More females than males arc likely
to be excluded for want of adequate knowledge of motor vehicles because of pervasive
and traditional sex stereotyping. How many female secondary students arc encouraged to take courses in auto mechanies, or shop, or physies? How many male secondary
students are encouraged to take courses in home economics, or shorthand, or typing?
Like the use of se.'I:-neutral physical criteria, the use of se.'I:-neutral criteria to mca!>'Ufe
general or specific aptitudes, skiIIs, or knowledge should also result in a prima facie
violation of the Texas ERA when these neutral criteria are shown to produce a significant adverse differential impact upon persons of one sex.
HeinOnline -- 15 Hous. L. Rev. 597 1977-1978
598
HOUSTON LAW REVIEW
[Vol. 15:537
the state should be permitted to rebut the prima facie violation of the
Texas ERA by proving that a "compelling" countervailing interest justifies
reliance upon sex-neutral criteria which produce a significant differential
impact upon females.
Why should the "affirmative defense" of compelling countervailing
interests be allowed in Case No.2 but rejected in Case No. 1? In Case No.
1, the female plaintiff was denied the opportunity to try out for the football team for the sole reason that she was female, but in Case No.2 the
female plaintiff is excluded from employment because she is a person who
is not 5 feet 2 inches tall. The plain language of the Texas ERA forbids a
denial or abridgement of equality because of sex. By force of the state constitution, different treatment on the basis of sex is not merely "suspect,"
it is absolutely forbidden. When a statute or other "official action" prescribes different treatment because of sex, which was true in Case No.1,
the plain language of the Texas ERA leaves no room to balance a conl>titutional violation against any "rational" or "compelling" countervailing interest. Countervailing interests, if any, are rendered irrelevant by the state
constitution.
A different problem is presented, however, when a statute or other
"official action" prescribes different treatment for persons for reasons other
than their sex, which is true with the height and weight criteria in Case
No.2. The height and weight criteria do not alone establish a prima facie
violation of the Texas ERA. Only when the plaintiff proves, as she did in
Case No.2, that application of the sex-neutral criteria produces a significant differential impact upon females is a prima facie violation of the
Texas ERA shown. The significant differential impact makes the sex-neutral
criteria "constitutionally suspect" because the differential impact upon
females justifies a suspicion that the policy of sex equality embodied in
the Texas ERA has been frustrated in part by the use of sex-neutral disqualifying criteria designed to produce a forbidden denial or reduction in
equality of employment opportunity for females. It therefore seems proper
and entirely consistent with the Texas ERA to have the state or other
proponent of the sex-neutral criteria dispel the justifiable suspicion that the
disqualifying criteria were adopted to frustrate the constitutional policy of
sex equality. This suspicion can be dispelled only if the defendant shows
that the sex-neutral disqualifying criteria serve a compelling governmental
interest unrelated to perpetuation of forbidden sex stereotypes.
The foregoing discussion produces a second principle of interpretation
which modifies the General Principle of interpretation. This principle,
designated as Principle No.1 reads: When a prima facie violation of the
Texas ERA is established by proof that use of sex-neutral criteria produces
a significant differential impact upon one sex, the proponent of the sexneutral criteria will prevail if the affirmative defense of compelling countervailing interests is shown.
HeinOnline -- 15 Hous. L. Rev. 598 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
The following discussion of the affirmative defense of compelling
interests is based in part upon decisions of the United States Supreme
Court. Decisions of the Supreme Court are considered relevant only for the
reason that, taken together, they establish what seem to be the appropriate
elements of the compelling interest defense. The governmental interest.
or interests, advanced by the disqualifying height and weight criteria must
be "compelling," not merely "rational." Although the difference between
"rational" and "compelling" governmental interests is unavoidably subjective, the more stringent standard imposed by the descriptive adjective
"compelling" provides less opportunity for conscientious judges to evaluate
the asserted interest by explicit or implicit reliance upon forbidden sex
stereotypes. The compelling interest defense to a prima facie violation
of the Texas ERA requires that the defendant assert the defense, prove the
facts upon which the defense rests, and convince the court that the interest
is truly compelling. Finally, if the compelling interest defense is established,
the defendant also must demonstrate that the compelling interest cannot
be satisfied by a different means having a less drastic impact upon members
of one sex or the other.
The iess drastic alternative" corollary to the compelling interest
defense follows naturally from the policy of sex equality embodied in the
Texas ERA and from the "indirect" character of the constitutional violation. When application of sex-neutral criteria produces a significant differential impact upon one sex, the criteria and their effects, as explained
earlier, are "suspect" under the Texas ERA. The defendant must dispel the
suspicion by proving that the differential impact upon one sex is justified
by a compelling interest unrelated to denying Or abridging sex equality.
Even if the defendant proves that a compelling interest justifies the differential impact upon one sex, it would be inconsistent with constitutional
policy to sustain the criteria if the compelling governmental interest could
be satisfied by another means which would not produce the constitutionally suspect differential impact upon one sex.
Returning to the facts of Case No.2, is the state able to establish a
"compelling interest" defense to sustain the minimum height and weight
qualifications for prison guards? The reason for selecting the specific
height and weight criteria is the state's basic defense. What "compelling"
governmental interest justifies excluding adult males and females from
employment as prison guards when they are not at least 62 inches tall and
do not weigh at least 120 pounds? Even if it is conceded that the state has
a compelling interest in the proper administration of its prisons and proper
supervision of prison inmates, that concession does not e;..-plain how or why
the height and weight criteria are related to these compelling governmental
interests. When a "compelling interest" defense is offered to a prima facie
violation of the T~as
, ERA, the defendant's case must be subjected to
exacting judicial scrutiny. Othenvise, the defendant would succeed upon
generalized assertions unsupported by adequate proof. Specifically, the
HeinOnline -- 15 Hous. L. Rev. 599 1977-1978
HOUSTON LAW REVIEW
600
[Vol. 15:537
state must establish that a genuine relationship exists between the disqualifying sex-neutral criteria and the compelling governmental interest
allegedly advanced by use of the criteria.
In Case No.2, the state, even conceding a compelling interest in the
proper administration of its prisons, must explain and prove why hiring
a prison guard 62 inches tall and weighing 120 pounds advances that compelling interest while hiring a prison guard an inch shorter and weighing
5 pounds less endangers the state's compelling interest. Ultimately the
question is whether the statutory sex-neutral criteria bear a proper relationship to any compelling interest. It is scarcely necessary to observe that
the state's interest could never be compelling if the governmental objective
served by the sex-neutral criteria is itself unconstitutional. In all cases
where the compelling interest defense might be raised by the defendant,
the court must carefully scrutinize both the ends and the means of "official
action" producing a significant differential impact upon one sex.
Deferring for a moment a prison guard's contact with inmates, is there
evidence that all persons who do not satisfy the height and weight criteria
are not able to perform the normal duties of prison guards because, for
example, they are too short to see over walls and parapets, or too weak to
open and close steel doors, operate levers and equipment, and the like,
or they lack the physical endurance or stamina of persons of larger stature?
All persons who do not satisfy the criteria are excluded when only a few
might be unable to perform their duties properly. The burden of proof,
however, is on the defendant to prove that all persons who do not satisfy
the minimum criteria are unable to perform their duties; the plaintiff
need not prove that all disqualified persons are able to perform their duties
properly. Absent proof that all persons who do not satisfy the criteria are
unable to perform their duties properly, the statutory criteria must be
declared unconstitutional because the criteria are impermissibly overinclusive. Forty-one percent of adult females cannot be excluded from beneficial employment upon the unproven assertion that they are unable to perform their duties properly. The constitutional guarantee of sex equality
prevents the state's use of sweeping and defective generalizations to secure
its "compelling interests."
Even assuming that the height and weight criteria are generally related
to proper job performance, the state's "compelling interest" in employing
qualified prison guards can be satisfied by a means less drastic than use
of statutory disqualifying criteria which do not consider the applicants on
an individual basis. The state may develop, validate and use a test for
individual applicants that measures their physical qualifications directly.
Paraphrasing the United States Supreme Court in Dothard v. Rawlinson,227
"Such a test, fairly administered, would fully satisfy the standards of [the
227.
433 U.S. 321 (1977).
HeinOnline -- 15 Hous. L. Rev. 600 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
601
Texas ERA] because it would be one that measures the person for the job
and not the person in the abstract:'228 If the state rejoins that it is not
possible to devise a valid test for individual applicants, the state must also
prove its contention that a valid test cannot be devised. If it were proven
that an individualized test cannot be devised, the height and weight
criteria should nevertheless be declared unconstitutional, with the result
that all adult applicants otherwise qualified should be allowed to prove
their individual abilities on the fob. Those who cannot perform properly
may then be terminated. Objection by the state that developing, validating
and using an individualized test will be too eXllensive or too inconvenient
must be rejected. These interests in economy and efficiency, though legitimate, can never be deemed "compelling" when they are offered as an
affirmative defense to a violation of the specific and unqualified constitutional guarantee of sex equality.
Should the height and weight criteria be viewed differently when a
prison guard's contact with prison inmates is considered? The state cannot
argue that male prison inmates should not be supervised by female guards,
for 59% of adult females are eligible for employment and 13% of Texas
prison guards are in fact females. Perhaps the state will assert that persons
who do not satisfy the height and weight criteria: (1) are too short and
weak to protect themselves from assaults by inmates, or (2) are too short
and weak to stop a fight or other disorder between inmates by physical
force, or (3) are too slight of stature to command the "respect" of inmates,
or (4) "invite" a physical assault or being taken hostage by inmates because
guards of slight stature lack the commanding physical appearance which
alone imposes a "psychological" restraint upon the aggressive tendencies
of inmates.
In the following discussion, recall that tlle height and weight criteria
do not draw a line between an applicant who is 6 feet tall and weighs 200
pounds and an applicant who is only 5 feet tall and weighs only 100 pounds.
The sex-neutral criteria distinguish only between applicants who are at
least 62 inches tall and weigh at least 120 pounds and those applicants who
do not quite meet these criteria. Again, the burden of proof is upon the
defendant to prove the affirmative defense of compelling countervailing
interest; the plaintiff, as part of her case, need not disprove tlle possible
existence of a compelling interest defense.
To the extent the height and weight criteria are designed to protect
"small" prison guards from physical harm resulting from inmate assaults,
that interest alone cannot be compelling because it is not permissible.
Forty-one percent of adult females cannot be excluded from beneficial
employment because the state has decided that the risk of physical harm
is too great for them. Recall Case No.1, where one reason for excluding
all females from a football program was to prevent physical injury to female
228. Id. at 332.
HeinOnline -- 15 Hous. L. Rev. 601 1977-1978
602
HOUSTON LAW REVIEW
[Vol. 15:537
players, though males were permitted to decide for themselves whether
the benefits of playing football outweighed the risks of injury. If applicants
5 feet 2 inches tall and weighing 120 pounds may decide for themselves if
the benefits of employment outweigh the risks, all adult applicants othorwise qualified must enjoy the same measure of personal autonomy.
The defendant may, however, allege that another "compelling interest," wholly unrelated to protecting "small" prison guards from physical
harm, justifies the height and weight criteria: "Small" prison guards, by
virtue of their "smallness," invite disorders, assaults, and a general breakdown in prison discipline because inmates react negatively to small guards
and are not sufficiently "intimidated" by prison guards of small stature.
Viewed in the abstract, the state's interest in preserving maximum order
and discipline in its prisons can be fairly characterized as compelling. But
the defendant must prove that drawing a line between applicants taller
than 62 inches and applicants shorter than 62 inches bears a genuine relationship to this compelling interest. The burden of proof imposed upon
the defendant scarcely is satisfied by evidence that amounts to little more
than hunch, intuition or appeals to "common sense."
The defendant must prove, at the very least, that the presence of
guards less than 62 inches tall creates an appreciably greater likelihood of
misconduct by inmates than when the guard force is composed wholly of
persons taller than 62 inches. The existence of reliable evidence supporting
this proposition is doubtful. If common sense, intuition, or hunch have
any relevance, the conclusion must be drawn, absent proof to the contrary,
that prison discipline is not determined by the physical stature of guards,
but that the level of prison discipline is determined by the personality and
professional behavior of individual guards, by the authority each guard
possesses as a guard, regardless of physical stature, and by the deterrent
effect of punishment for inmates who violate disciplinary rules and regulations. Even assuming the state were able to prove that prison discipline
is adversely affected by the presence of guards less than 62 inches tall,
the state also must demonstrate that no '1ess drastic means" is available
to preserve the level of discipline without excluding 41 percent of adult
females from employment. The risk of increased inmate misconduct caused
by "small" prison guards surely must be confined only to those guards
whose duties require frequent and close contact with inmates. Could not
this increased risk of misconduct be corrected by using teams of one "small"
guard and one larger guard?
The foregOing discussion of the affirmative defense of compelling
countervailing interests to a prima facie violation of the Texas ERA shown
by the significant differential impact of sex-neutral criteria upon one sex
is presented in the context of a specific fact situation. All possible fact
situations cannot be discussed here, but it is submitted that Principle No.1
provides a method of analysis appropriate for any case of differential impact, and that the elements of the compelling interest defense are consistent
HeinOnline -- 15 Hous. L. Rev. 602 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
603
with the constitutional policy of sex equality.
C. Principle No.2 - Case No.3
The third hypothetical case presents this question: Does the Texas
ERA prohibit different treatment for persons "because of sex" when a
unique, gender-specific physical characteristic is offered in defense of the
sex-baSed classification? The facts of Case No.3 are freely adapted from
Geduldig v. AieUo,229 a 1974 decision of the United States Supreme Court.
Assume that a state-administered employment disability program provides
that all employees in Texas, except those protected by a private plan
approved by the state, shall receive specified benefits when they are
unable, for reason of any
, mental or physical illness or injury, to perfoml
their regular or customary work. The only "disability" specifically excluded
from the otherwise comprehensive program is an employee's disability
resulting from pregnancy. By way of further illustration, assume opposite
facts, that the state-administered employment disability program provides
benefits only for disability resulting from pregnancy.
The first set of assumed facts includes all employment disabilities
except pregnancy, but the second set of facts excludes all disabilities except
pregnancy. In one case pregnant employees are disfavored by exclusion of
pregnancy as a compensable disability, but in the other case pregnant
employees are favored by a plan that denies compensation for disability
resulting from any cause except pregnancy. Only females can become pregnant, so in both cases the words "pregnant employee" must be read as
"pregnant female employees." And in both cases, whether the female
employee is favored or disfavored by the pregnancy classification, the
crucial fact is not merely that the employee is female but that she is pregnant. The basis for different treatment of pregnant employees is therefore
determined by their sex plus an additional fact not common to all female
employees, the fact of pregnancy.
Referring to the first set of hypothetical facts, assume that a pregnant
female employee files suit alleging that the statutory exclusion of pregnancy from the otherwise comprehensive disability plan violatcs the sex
equality provision of the Texas ERA. Again, the plaintiff must show that
the alleged violation occurs "under the law" and that she has been denied
equality "because of sex."230 Because the pregnancy exclusion is contained
in a statute, the alleged violation plainly occurs "under the law." Will the
female plaintiff be able to show that the pregnancy exclusion denies her
equality because of sex? She ,vill assert that a denial of equality because
of sex is manifest, for only females can be pregnant. The state probably
,vill rejoin that she is treated differently than all other male and female
229. 417 U.S. 484 (1974).
230. TEX. CONST. art. I, § 3a.
HeinOnline -- 15 Hous. L. Rev. 603 1977-1978
HOUSTON LAW REVIEW
604
[Vol. 15:537
employees solely for the reason of her pregnancy, not for reason of her
sex. Mter all, not every female employee is or will be pregnant.
Although the arguments of the parties conflict, neither is clearly incorrect. Pregnancy is a condition unique to females, so different treatment
based upon a person's pregnant condition necessarily affects only females.
But female employees who are not pregnant enjoy the same disability
benefits as male employees. Considering the facts and the conflicting arguments, what interpretation of the Texas ERA is appropriate for deciding
whether the pregnant female employee has suffered a violation of her
constitutional guarantee of sex equality?
An interpretation of the sex equality provision of the Texas ERA which,
in every case, denies or ignores the obvious physical differences between
men and women would be absurd and contrary to the design of nature.
The Texas ERA can make these physical differences between the sexes
irrelevant "under the law," but should do so only when the result comports
with common sense and the design of nature. For example, a Texas welfare statute providing abortions for indigent persons at state expense should
not be held to violate the Texas ERA because no male person will ever
enjoy the benefits of the statute. Ludicrous results should be avoided in
constitutional interpretation. Some years ago, the United States Supreme
Court observed that the equal protection clause of the fourteenth amendment to the United States Constitution does not require that things "different in fact ... be treated in law as though they were the same."231 Similarly,
the Texas ERA should not, in every case, require that men and women be
treated in law as though they are the same, when in fact they are not.
To avoid an absurd and irrational interpretation of the Texas ERA, the
specific and unqualified constitutional guarantee of sex equality should be
understood to mean that equality for males and females is guaranteed in
all cases except those where equality of treatment is inconsistent ,vith the
physical differences between the sexes ordained by nature. The proponents
of the Texas ERA could not have intended that the guarantee of sex equality
should deny or ignore the physical differences between the sexes to achieve
in every case an absurd '1egal equality" for men and women which is contrary to the design of nature. This implicit limitation upon the constitutional
guarantee of sex equality is required to reconcile the policy of the constitution with the reality of nature.
The foregoing discussion leads to the formulation of Principle No.2,
which, like Principle No.1, modifies the General Principle of interpretation and reads: When the basis for different treatment of males and females
iY a unique gender-specific physical characteristic, the different treatment
will be sustained only when it is shown that the reference to the unique
characteristic, or the different treatment resulting from its use, does not
231.
Tigner v. Texas, 310 U.S. 141, 147 (1940).
HeinOnline -- 15 Hous. L. Rev. 604 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
605
offend or endanger the constitutional guarantee of sex equality. This principle of interpretation is not offered as a means to circumvent the state's
policy of sex equality. Nor is the principle necessarily easy to apply in a
given case. Proper use of the principle requires a conscientious review and
evaluation of different factors to determine whether a person is denied
equality because of sex.
The first set of assumed facts presents a disability program covering
every employment disability except pregnancy. It seems appropriate to
place the burden of proof initially upon the pregnant female employee to
convince the court that the pregnancy exclusion does in law amount to a
denial of equality because of sex. If the unfavorable treatment does not
occur "because of sex," no violation of the Texas ERA is established. But
if she convinces the court that she is disfavored because she is female,
she then has suffered a denial of equality because of sex.
For the following reasons, the court should conclude that the pregnancy exclusion violates the constitutional guarantee of sex equality. Pregnancy, a disabling condition unique to females, is the only disability excluded from an othenvise comprehensive disability compensation plan.
Although pregnancy is a unique medical condition, the legislative program
from which the condition is excluded provides protection for employment
disability. Obviously the employment disability resulting from pregnancy
is no less a disability than disability resulting from a broken leg or gall
bladder surgery.
But pregnancy, the proponent of the exclusion will argue, results from
voluntary conduct and is thus different from other illnesses, injuries and
conditions. Pregnancy may be planned or unplanned, yet the resulting
employment disability is no different than the disability resulting from a
broken leg suffered in a skiing accident. The skiing disability is covered
but the pregnancy disability is not, though the voluntary conduct leading
to both disabilities seems essentially comparable.
Additionally, pregnancy is neither unlawful nOr immoral, and among
women of childbearing age pregnancy is neither unusual nor abnormal. The
disability plan also provides benefits for disabilities which are unique to
males, including hemophilia, gout, and circumcision, but the only disability
excluded is unique to females. Every disability common to both males and
females is covered; every disability suffered only by males is covered; but
every disability suffered only by females is not covered. Only female
employees are subjected to the risk of an uncompensated employment
disability by the pregnancy exclusion.
The foregOing considerations, viewed in their totality, suggest that
the pregnancy exclusion disfavors females because they are female, and
that denial of benefits for an employment disability resulting from a medical condition unique to females in an othenvise comprehensive program
denies equality because of sex. Even assuming that the pregnancy exclu-
HeinOnline -- 15 Hous. L. Rev. 605 1977-1978
606
HOUSTON LAW REVIEW
[Vol. 15:537
sion was not motivated by any conscious desire to penalize female employees because they are female, the legal effect of the pregnancy exclusion, in these particular circumstances, penalizes females for being female
because only females can be pregnant. Had the disability program covered
every employment disability except hemophilia, a condition suffered only
by males, a male employee disabled from employment by hemophilia
would have a similar argument. Like the pregnant female employee, the
hemophiliac male employee is singled out and penalized for a disability
which, by the laws of nature, can only affect males.
The reason for excluding pregnancy from the list of otherwise compensable disabilities should also be considered. In Geduldig v. Aiello,232
the United States Supreme Court decision from which the facts of this
hypothetical case are adapted, the state's sole justification for the pregnancy exclusion was fiscal. 233 The disability benefits in Geduldig were paid
from a state fund created by a mandatory contribution of one percent of
participating employees' wages up to a ma.ximum annual contribution of
$85.234 Self-supporting, the fund each year paid out in benefits between
90 and 103% of the income derived from the employee contributions.23G
If pregnancy were included as a compensable employment disability, the
parties in Geduldig estimated that the benefits paid out would be increased
by a minimum of 12% and a maximum of 36%.236 Including pregnancy
among compensable disabilities would necessarily disrupt the existing
scheme, for the additional funds required to pay disability benefits for
pregnancy would require a state subsidy, a higher rate of employee contribution, a lower scale of benefits for all disabilities, or some combination
of these measures. The Court, using a traditional equal protection analysis,
concluded that the state's reasons for excluding pregnancy from the disability program were legitimate, rational and noninvidious, and that denial
of benefits to pregnant female employees did not violate the equal protection clause of the fourteenth amendment to the United States Constitlltion.237
232. 417 U.S. 484 (1974).
233. Id. at 492-94.
234. Id. at 487.
235. Id. at 492-93.
236. ld. at 494 n.18.
237. ld. at 496-97. The Court also concluded that the pregnancy exclusion was
not a sex-based classification:
The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition-pregnancy-from the list of compensable disabilities. While it is true that only
women can become pregnant, it does not follow that every legislative c1ns~i­
Hcation concerning pregnancy is a sex-based classification ....
ld. at 496 n.20.
Justice Brennan, joined by Justices Douglas and Marshall, dissented:
In my view, by singling out for less favorable treatment a gender-linked dls-
HeinOnline -- 15 Hous. L. Rev. 606 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
6CJ7
Whatever may be thought of Geduldig and the Court's use of the traditional equal protection analysis, the decision cannot be considered controlling in Texas. The United States Constitution contains no specific
guarantee of sex equality, but the Texas Constitution does contain a specific
guarantee. This critical difference between the federal and state constitutions supports the conclusion that pregnant female employees in Texas
cannot be penalized by exclusion from an otherwise comprehensive disability program simply to avoid the fiscal consequences that inevitably will
result when pregnancy is included within the list of compensable disabilities. Justice Brennan's dissenting opinion in Geduldig illuminates this conclusion: "[W]hatever role such monetary considerations may play in traditional equal protection analysis, the State's interest in preserving the fiscal
integrity of its disability program simply cannot render the State's use of
a suspect classification constitutional."238 Under the Texas ERA, different
treatment on the basis of sex is not merely "suspect"; it is plainly forbidden.
The Texas ERA does not permit the state to penalize pregnant females by
exclusion from the disability program simply because inclusion of pregnancy disabilities would upset or disturb the historic equilibrium between
income and disbursements and would require certain modifications to the
disability program.
All state activities, including fiscal practices and policies, are subject
to the Texas ERA. What may have been a permissible fiscal justification
before the Texas ERA is not necessarily permissible after the Te.xas ERA.
a proposition recognized in Texas 'Woman's University v. Clzayklintaste.239
The constitutional guarantee of sex equality means nothing if it becomes
"inoperative" when effectuation of the guarantee will, or might, result in
fiscal consequences the state prefers to avoid. Competing policies of sex
equality and fiscal discretion have been balanced in favor of sex equality
by the Texas ERA. State fiscal preferences and policies can no longer be
implemented by means of sex-based classifications, unless the state can
demonstrate that the sex-based classification neither offends nor endangers
the state's constitutional policy of sex equality.
A state employment disability program that prOvided benefits for only
male employees would violate the Texas ERA because female employees
are disfavored and penalized because they are female. Similarly, a state
disability program that covers every employment disability except pregability peculiar to women, the State has created a double standard for dhability compensation: a limitation is imposed upon the disabilities for which
women workers may recover, while men receive full compensation for all
disabilities . . . • Such dissimilar treatment of men and women, on tht' basis
of physical characteristics ine.xtricably linked to one sex, inevitably constitutes sex discrimination.
Id. at 501 (Brennan, J., dissenting).
238. 417 U.S. at 504 (Brennan, J.• dissenting).
239. 521 S.W.2d 949, 951 (Te.'{. Civ. App.-Fort Worth), rco'd on otller grounds,
530 S.W.2d 927 (Tex. 1975).
HeinOnline -- 15 Hous. L. Rev. 607 1977-1978
HOUSTON LAW REVIEW
608
[Vol. 15:537
nancy violates the Texas ERA because the criterion of exclusion, a genderspecific, physical characteristic unique to females, penalizes females because they are female. When the only disability exempted from an otherwise
comprehensive benefit program is a physical characteristic unique to
females, and only a fiscal justification is offered in defense of the different
treatment for females, pregnant female employees are denied equality
because of sex. It cannot be denied that only female employees, though
certainly not all female employees, are subjected to the risk of an uncompensated employment disability caused by pregnancy. The female employee
has shown that the effect of the pregnancy exclusion denies her equality
because of sex. Additional consideration of the "fiscal reasons" for the pregnancy exclusion cannot alter the conclusion that pregnant female employees
have been penalized because they are female. The state's use of a genderspecific, physical characteristic unique to females to avoid undesirable
fiscal consequences cannot be sustained under Principle No.2.
Conforming the employment disability program to the Texas ERA
may require that the disability fund be subsidized from the state's general
revenues, or that each employee's mandatory contribution be increased
slightly, or that the dollar amount of disability benefits paid to all disabled
employees be reduced slightly. This result is scarcely remarkable or objectionable under the Texas ERA. Apportioning scarce and finite welfare
funds by means of a racial classification is forbidden by both the equal
protection clause of the United States Constitution and by the Texas ERA.
The Texas ERA alone forbids apportioning scarce and finite employment
disability funds by means of a sex-based classification.
The employment disability program created by California in Geduldig
was both discretionary and remedial, for presumably no provision of the
state constitution compelled the California legislature to create the program to ameliorate the financial hardship of employment disability for
employees not covered by a private disability plan. As an additional justification for its holding in Geduldig, the Supreme Court observed that the
federal equal protection clause "does not require that a State must choose
between attacking every aspect of a problem or not attacking the problem
at all."240 Thus, the pregnancy exclusion was viewed as "one aspect" of
the problem of employment disability, but failure to provide a remedy for
"all aspects" of the problem is permissible when the classification between
"different aspects" is not otherwise invidious. Even conceding tllllt remedial legislation may proceed one step at a time, the federal equal protection
clause nevertheless limits the means by which a partial remedy is effected.
For example, it is unthinkable that the Supreme Court would sustain a
remedial employment disability program that excluded all black employees
240.
417 U.S. at 495.
HeinOnline -- 15 Hous. L. Rev. 608 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
609
on the ground that the legislature may proceed one step at a time and
extend benefits only to white employees as the first step. Similarl)" the
Texas constitutional guarantee of sex equality limits legislative discretion
to withhold the benefits of remedial legislation on the basis of sex.
Reversing the facts of the pregnancy exclusion case, assume now that
the state's disability program is actually a "pregnancy disability" program,
and that pregnancy is the only employment disability for which benefits
are paid. All other employment disabilities, regardless of cause, are not
covered. A male employee disabled from employment by disease or injury
files suit alleging that his constitutional guarantee of sex equality is violated
by the pregnancy disability program. Has he been denied equality because
of sex? The answer should depend upon a careful consideration of the
relevant facts, objectives, means, policies and effects.
What reasons might explain the legislative decision to adopt an employment disability program that excludes every disability except pregnanc)'?
Covering only one disability is obviously less costly tllan covering all or
many disabilities. In addition to fiscal considerations, tlle legislature might
have believed that benefits for pregnancy disability would reduce the economic hardship of pregnancy for employed women, especially low-income
women, who might otherwise terminate their pregnancies by abortion. The
preceding discussion of the pregnancy e.xclusion concluded tlIat a violation
of the Texas ERA cannot be justified by countervailing fiscal interests, but
the different treatment based on a unique gender-specific, physical characteristic must in every case amount to a denial of equality because of sex.
If the different treatment of which the plaintiff complains does not deny
equality because of sex, no violation of the Texas ERA is shown and a
fiscal justification for the different treatment is tllerefore permissible. The
question is reduced to whether a disabled male employee is denied equality
because of sex when pregnancy is the only employment disability covered
by the state plan.
The male employee will argue that his employment disability resulting from an injury or illness is no less a disability than an employment
disability resulting from pregnancy, but a plan that covers only pregnancy
disability does not purport to be a comprehensive disability plan. In the
first set of assumed facts, pregnancy was the only disability excluded from
an otherwise comprehensive disability plan, but a plan that covers only
pregnancy disability is not comprehensive. If tlle state provided free sterilization procedures for only female welfare recipients, male welfare recipients denied free sterilization procedures are denied equality because of sex.
Although males beget and females bear children and the sterilization procedures for males and females are different, the object of tlle procedure,
termination of procreative function, is not unique to eitller sex, but is
common to both sexes. Conversely, pregnancy is a condition, and abortion
a procedure, unique to females. No male condition is comparable to preg-
HeinOnline -- 15 Hous. L. Rev. 609 1977-1978
610
HOUSTON LAW REVIEW
[Vol. 15:537
nancy and no procedure comparable to abortion may be performed upon a
male. A plan that covers only pregnancy disability obviously denies no
male benefits for a disability arising from a male condition comparable to
pregnancy, for there is no male equivalent to pregnancy. A pregnancy disability plan is properly characterized as a plan concerned only with pregnancy, but an otherwise comprehensive disability plan that excludes only
pregnancy disability is properly characterized as a plan concerned with
disabilities, regardless of cause.
This different characterization of the two hypothetical plans, a characterization determined by the general objective of the plan, is not alone
controlling, but is simply one factor among many to consider in deciding
whether the disabled male employee has been denied equality because of
sex. Under these assumed facts, a gender-specific, physical characteristic
unique to females has been singled out for preferential treatment. Only
females will enjoy the benefits of the limited disability program, but those
females also must satisfy the criterion of pregnancy. No male employee
will receive benefits under the program, nor will any female employee
who suffers employment disability from any cause other than pregnancy.
In the first set of assumed facts, only female employees were subjected to
the risk of an uncompensated employment disability-pregnancy. But the
pregnancy disability program does not have that effect, for it is clear that
male and female employees alike are subjected to the risk of uncompensated employment disabilities. A male or female employee who is disabled
from employment by a heart attack, by a broken arm or leg, by elective
or emergency surgery, by hemophilia (a disability unique to males), or
by abortion (a disability unique to females) is not eligible for benefits. The
criterion for different treatment is a physical characteristic unique to
females, and to that extent female employees who are pregnant enjoy
a benefit "because of sex." But do male employees suffer a denial of
equality "because of sex" when it appears that many disabilities common
to both males and females are not covered by the pregnancy disability program? Some employees, all of whom are necessarily female, receive benefits for pregnancy, but it seems difficult to conclude that male employees
are disfavored and penalized because they are male when their fellow
female employees who suffer a non-pregnancy disability are likewise denied
benefits.
Because the denial of disability benefits affects both males and females,
it should be concluded that preferential treatment for pregnant females
is permissible under Principle No.2. Under these particular facts, use of a
gender-specific, physical characteristic unique to females does not offend
or endanger the state's constitutional policy of sex equality.
The major difference between a disability program that covers every
employment disability except pregnancy and a program that covers only
pregnancy is the comprehensive nature of the former program and its inevi-
HeinOnline -- 15 Hous. L. Rev. 610 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
611
table effects. In one situation every disability is covered except a disability
unique to females, but in the other situation the program is not comprehensive and disabilities common to males and females are excluded. The two
sets of assumed facts illustrate the e>..uemes. A disability program that
covers more than one disability but not all disabilities may present more
difficult problems under the Texas ERA and Principle No.2. If, however,
it is proper to take account of gender-specific physical characteristics
unique to one sex or the other to avoid an absurd and irrational interpretation of the Texas ERA in particular cases, it seems that application of
Principle No. 2 to the facts and circumstances of the particular case will
allow a permissible reconciliation of the constitutional policy of sex equality
with the laws of nature. If there is genuine doubt whether use of a genderspecific, physical characteristic unique to one sex or the other is consistent
with Principle No.2, those doubtful cases should probably be resolved by
holding that use of the unique physical characteristic violates the Texas
ERA.
Several additional situations where unique physical characteristics may
be thought relevant to a proper decision under the Texas ERA deserve
brief discussion. In the discussion of hypothetical Case No.1, it was
asserted that a school board could not exclude female students from participation in the football program for the reason that female football players
might suffer unique injuries to their reproductive organs. Principle No. 2
does not alter that conclusion. Obvious physical differences between males
and females cannot be used to exclude one sex from activity open to the
other sex simply because persons of one sex might suffer an injury different·
in kind than persons of the other sex. If risk of a "unique injury" were
recognized under the Texas ERA as an adequate justification for unequal
treatment because of sex, the same reasoning would permit the state to
prohibit females from operating motorcycles and automobiles, because
an accident might produce an injury to their reproductive organs of a
kind that could not be suffered by males.
In Finley v. State,241 the Texas Court of Criminal Appeals sustained
the sex-based classification found in the Texas rape statutes upon several
grounds, one of which was "unique characteristics:'242 Discussion of Finley
led to the assertion that the risk of pregnancy to a female victim of nonconsensual intercourse is the only "unique characteristic" that might justify
more serious punishment for a male who has nonconsensual intercourse
,vith a female victim than for a female guilty of the same offense against
a male victim.243 Although it is possible that the risk of pregnancy to a
female victim of rape might be among the historical justifications for imposing severe penalties upon male rapists, nothing in the penal code of today
241. 527 S.W.2d 553 (Tex. Crim. App. 1975).
242. ld. at 556.
243. Refer to te.n accompanying notes 124-136 supra.
HeinOnline -- 15 Hous. L. Rev. 611 1977-1978
HOUSTON LAW REVIEW
612
[Vol. 15:537
suggests that the striking differentials in punishment, determined solely
by the sex of the defendant and the victim, are the result of a specific
legislative concern for the risk of pregnancy for female victims.
Assuming, however, that a sex-based classification will be sustained
if it can be justified for any reason permissible under the Texas ERA, does
the risk of pregnancy to female victims of nonconsensual intercourse represent a permissible and constitutional use of a physical characteristic unique
to one sex? Criminal offenses are commonly graded by reference to certain
risks of additional harm. For example, the Texas Penal Code provides that
a threat of bodily injury, a simple assault, becomes an aggravated assault
when the threat is accompanied by a deadly weapon. 244 Simple burglary,
a second-degree felony, becomes a first-degree felony if the defendant committing the burglary is armed with a deadly weapon. us The Texas Penal
Code also makes the grade of criminal offense occasionally dependent upon
the status of the victim. A deadly assault upon a peace officer is a firstdegree felony, but a deadly assault upon any other person is a third-degree
felony.u6 The foregoing offenses indicate that punishment may be increased
because the criminal conduct presents additional risks, though the harm
risked need not actually materialize to convict.
An unwanted pregnancy is an additional risk of nonconsensual intercourse for only female victims. Because the additional risk of pregnancy is
unique to female victims, this use of a unique gender-specific, physical characteristic to justify greater punishment for a male defendant than a female
defendant appears permissible under the Texas ERA and Principle No.2.
Intercourse accomplished without consent of the victim is a crime, and
criminal penalties, whether harsh or mild, are easily avoided by refraining
from the proscribed conduct. It would be an absurd and irrational interpretation of the Texas ERA to hold that the legislature cannot take account
of the unique physical characteristics of both males and females by prescribing greater punishment for a male who subjects his female victim to
the unique risk of pregnancy. This sex-based inequality, based as it is upon
unique physical characteristics of both sexes, does not offend the state's
constitutional policy of sex equality.
A final problem in this discussion of unique physical characteristics
is presented by the common use of sex-based actuarial tables to determine
costs or benefits for pensions, annuities, life and liability insurance, and the
like. A recent decision of the Indiana Supreme Court, Reilly v. Robertson,U7 held that the use of sex-based mortality tables by a state retirement
fund to provide monthly annuities of a different amount for male and
female recipients violated the equal protection clause of the United States
244.
245.
246.
247.
TEX. PENAL CODE ANN. § 22.02 (Vernon 1974).
ld. § 30.02(d).
ld. §§ 22.03, 22.02.
360 N.E.2d 171 (1977).
HeinOnline -- 15 Hous. L. Rev. 612 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
IlI3
Constitution and the Indiana Constitution.248 The Texas Constitution, Unllkl'
that of Indiana, contains a specific and unqualified guarantee of sex equality under the law. Use of sex-based actuarial tables in Texas, if such use
occurs "under the law," violates the Texas ERA, and cannot be justified
by the unique gender-specific characteristic e.xception proposed in Principle
No.2. Sex-based actuarial tables, though valid and accurate, nevertheless
produce inequality "because of sex."
Action taken "under the law" which provides unequal treatment because of sex is not, as proposed in the General Principle, subject to an
affirmative defense of countervailing interests, good motives, or the
absence of purposeful intention to discriminate on the basis of sex. Unequal
treatment on the basis of sex alone, whatever the reason, is forbidden,
unless the sex-based inequality can be justified by the exception for
unique physical characteristics proposed in Principle No.2. Even conceding
the validity of sex-based actuarial tables, their use should not be approved
under Principle No.2. That women live longer than men is common
knowledge, but actuarial tables confirming this fact are only generalizations. Because some men live longer than some women, the generaliz.'ltion
that women live longer than men is obviously subject to exception when
specific men and women are considered. The "unique physical characteristic" attributed to women, that they live longer than men, and also attributed to men, that they do not live as long as women, is not in fact a characteristic unique to all persons of either sex. Principle No.2 cannot apply,
and the resolution of the prima facie violation of the Texas ERA is governed by the General Principle.
Use of sex-based actuarial tables should be discontinued. Because it
is unlikely that risks can be estimated upon an individual basis, actuarial
projections should be computed from tables combining relevant data for
both males and females to secure a uniform average for all persons without
reference to their sex. Although use of combined data may result in slightly
higher costs for males or females in some cases, or slightly reduced benefits
for males or females in other cases, this modification of the actuarial
process is merely an inevitable consequence of the constitutional guarantee
of sex equality.
D. Principle No.3 - Case No.4
The final hypothetical case presents this question: Does the sex equality provision of the Texas ERA prohibit official segregation of persons
"because of sex"? When the facts of Vorclzheimer v. School District,249 a
Third Circuit case, are transferred from Pennsylvania to Texas, a case of
official segregation "because of sex" arises. Assume that a school board in
248. ld. at 176-79.
249. 532 F.2d 880 (3d eir. 1976), aft'd by an equaUy divided Court, 430 U.S.
703 (1977) (Rehnquist, J., Dot participating).
HeinOnline -- 15 Hous. L. Rev. 613 1977-1978
614
HOUSTON LAW REVIEW
[Vol. 15:537
a large Texas city operates two academic high schools, one for girls and
one for boys. Although the school board operates other high schools, all
of which are coeducational, the sex-segregated academic high schools have
high admission standards, offer only a college preparatory curriculum, and
are open to voluntary enrollment by any academically qualified student, in
the school district. These sex-segregated academic high schools were established in 1935, long before the Texas ERA was approved in 1972.
Mer visiting both the girls' and the boys' academic high school, a
female student qualified for enrollment in an academic high school seeks
enrollment in the boys' school. The school board refuses to enroll her in
the boys' school and encourages her to enroll in the girls' school. She then
files suit against the school board alleging that exclusion from the boys'
school solely for reason of her sex violates the Texas ERA. The major
difference between Vorchheimer and Case No.4 is that Vorchheimer was
filed in a federal court and alleged a violation of the equal protection clause
of the United States Constitution,250 while Case No.4 is filed in a Texas
state court and alleges violation of the state constitution. The Third Circuit
held in Vorchheimer that segregation of the sexes in Philadelphia's academic high schools did not violate the federal equal protection clause.2G1
Does segregation of the sexes in the hypothetical Texas academic high
schools violate the Texas ERA? The constitutional questions presented by
Case No.4 could arise in other contexts where official segregation of porsons by sex is traditional, including hospitals, prisons, jails, athletic teams,
restrooms, dormitories, locker rooms, and similar facilities operated by the
state, its political subdivisions, and its agencies.
The female plaintiff must demonstrate that the alleged denial of equality because of sex occurs "under the law."252 Because she is denied enrollment in the boys' school pursuant to the regulations and policies of a public
school district, this element of her prima facie case is established. She
also must demonstrate that she is denied equality because of her sex.2au
She can certainly establish that enrollment in the boys' school was denied
for reason of her sex, but has she, under these facts, suffered a denial of
"equality"? Rephrased, the question presented in Case No.4 is whether
the Texas ERA forbids use of the doctrine of "separate but equal" facilities
for males and females.
At least three general responses are available when a person alleges
that official sex-based segregation violates the Texas ERA. First, any form
of official segregation, separation, or isolation on the basis of sex is forbidden by the plain language of the Texas ERA, regardless of the reasons
advanced to justify the segregation. Second, official segregation on the
250.
251.
252.
253.
532 F.2d at 881.
ld. at 888.
TEX. CONST. art. I, § 3a.
ld.
HeinOnline -- 15 Hous. L. Rev. 614 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
615
basis of sex is forbidden unless such segregation protects "fundamental"
individual rights. Third, official segregation on the basis of sex is pennissible when both sexes are treated equally and the reason for the sex-based
segregation is unrelated to the perpetuation of the sex stereotyping the
Texas ERA was designed to eliminate. Although no Texas court has been
required to provide an interpretation of the Texas ERA in the context of
official segregation on the basis of sex, it seems likely that the issue will be
presented in some future case unless all existing forms of official sex-based
segregation are terminated by legislative act or by the e....ercise of official
discretion.
Of the three available interpretations, an absolute prohibition against
any form of official sex-based segregation is the most appealing because
it is easily applied, it provides the greatest protection against· erosion of
the constitutional guarantee of sex equality, and it could not lead to unhappy consequences similar to those resulting from the American experience ,vith official segregation on the basis of race. Despite these advantages, however, it seems unlikely that an absolute constitutional prohibition
against any form of official sex-based segregation will be selected by the
Texas courts as the correct interpretation of the Texas ERA. Opponents of
the ERA argue that adoption of the amendment could only result in socalled "unisex" restrooms, college dormitOries, prisons, and the like. Proponents assert that a constitutional guarantee of sex equality would be
tempered by judicial recognition of countervailing fundamental rights;
for example, the right of privacy could prevent untoward mingling of the
sexes.254 Had proponents of sex equality taken the position that every fonn
of sex-based segregation would be forbidden by an equal rigbts amendment, opponents might have exploited this position to their political advantage by characterizing proponents of sex equality as moral degenerates.
So many commentators and proponents have suggested that the fundamental right of privacy is available to prevent "inappropriate" mingling
of the sexes255 that only an intrepid judge would be willing to risk the
consequences of a decision that the sex equality provision of the Te.xas ERA
absolutely forbids any form of official sex-based segregation, regardless
of the reasons advanced to justify it.
A second possible interpretation of the Texas ERA in a case of sexbased segregation relies upon the right of privacy or some other fundamental right found in the United States or Texas Constitution. This interpretation of the Texas ERA therefore is predicated upon the collision of two
or more constitutional rights. A person alleging that a particular fonn of
sex-based segregation denies equality because of se.x will be answered by
254. E.g., Brown, Emerson, Falk & Freedman, The Equal Rights Amendment:
A Constitutional Basis for Equal Rights for Women, 80 YALE L.J. 871, 900-02 (1971)
(discussing proposed Federal ERA).
255. See, e.g., id.
HeinOnline -- 15 Hous. L. Rev. 615 1977-1978
616
HOUSTON LAW REVIEW
[Vol. 15:537
the assertion that protection of another constitutional right justifies the
sex-based segregation. Sex-based segregation, traditional in public restrooms, provides a much-abused illustration. If a male or female alleges a
denial of sex equality because he or she is excluded from a restroom designated for the use of the opposite sex, the defense will assert that, if this
form of sex-based segregation does in fact deny equality because of sex
(a point the defense should not concede), segregation nevertheless is permissible to protect the privacy of members of each sex.
Courts often are required to reconcile statutes which apparently conflict with one another. Assuming that a reconciliation between apparently
conflicting constitutional rights will be accomplished either by modifying
one right or by outright subordination of one right to the other, this process
of reconciliation fails to indicate which of the conflicting rights will prevail in a particular case. The major advantage of this possible interpretation is that it allows the courts to avoid "unseemly" mingling of the sexes
by balancing equally fundamental rights, presumably with no greater
denial of either right than the facts and circumstances of the case require.
The major disadvantage of this approach in cases of official sex-based segregation is that any reason used to justify sex-based segregation might be
found to vindicate some "fundamental" right. A substantial denial of
equality because of sex therefore might result from careless, hostile, or
sex-stereotypical judicial definitions of "fundamental rights."
The third possible interpretation is that "separate but equal" treatment·
on the basis of sex is permissible when both sexes are treated equally and
the reason for the sex-based segregation is unrelated to the sex-stereotyping
the Texas ERA is designed to eliminate. This interpretation is apparently
consistent with the unadorned text of the amendment. After all, the right
guaranteed by the Texas ERA is "equality," not "free association with members of the opposite sex." A similarly superficial and shortsighted textual
interpretation of the federal equal protection clause was overruled by the
Supreme Court when racial segregation in public schools was held unconstitutional in Brown v. Baard af Educatian. 256 "Separate educational
facilities are inherently unequal" was the Court's unanimous holding in
Brawn.257 The evidence upon which the Court relied in Brorvn demonstrated
that black children perceived their segregation from white children as an
official declaration of inferiority, which in turn adversely affected motivation, mental development, and educational achievement. 258 Even assuming
that the separate schools for black and white children were equal in terms
of buildings, programs, equipment, and qualifications and salaries of
teachers, the effects of segregation by race demonstrated that what appeareu
to be equal was "inherently unequal."
256. 347 U.S. 483 (1954).
257. Id. at 495.
258. Id. at 493-95.
HeinOnline -- 15 Hous. L. Rev. 616 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
617
Anglo-American customs, traditions, attitudes, and laws generally have
given to women a status inferior to men, and to this extent the historical
burdens of inferiority imposed upon women are similar to those imposed
upon black persons. Much as the Civil \Var Amendments to the United
States Constitution were designed to correct historical inequality for black
persons, the sex equality prOvision of the Texas ERA is designed to correct
historical inequality for women, though men may also claim its protection
in an appropriate case. The constitutional guarantee of sex equality therefore prohibits any official action that creates, or seems likely to cn.-ate,
barriers to individual fulfillment because of sex, or diminishes equality
of opportunity because of sex, or marks persons of one sex inferior to persons of the other sex. Brown and the history of the movement for sex equality make a less generous reading of the Texas ERA unthinkable.
Returning to the hypothetical facts with which this discussion of Case
No.4 begins, the question is whether the existence of separate but equal
public secondary schools violates the sex equality provision of the Texas
ERA. In Vorchheimer v. School District,:!!l9 the Third Circuit held that sexsegregated academic high schools, where attendance was voluntary, did not
violate the federal equal protection clause.2GO If the schools are separate,
they must be equal in terms of curriculum, teaching personnel, facilities,
and overall prestige. For example, a female student cannot be denied enrollment in the male high school if the male school offers a better or mow
extensive curriculum in science or technical subjects than the female school;
nor should a male student be denied enrollment in the female school if the
female school offers a better or more e},:tensive curriculum in music than
the male school. In Vorchlwimer, the separate schools were equal, except
that the male high school had "superior" academic facilities in the
sciences.261 This want of equality apparently was ignored because the
female plaintiff desired to challenge the principle of separate schools, not
their equality.
Assuming that the hypothetical Texas schools in Case No. oJ are
equal, does this form of sex-based segregation nevertlleless violate the
sex equality provision of the Texas ERA when all relevant factors are COllsidered? If the Texas ERA forbids any form of sex-based segregation, tlle
court must hold that operation of separate schools for males and females
violates the Texas ERA. Under this interpretation of the amendment, the
reasons advanced to justify the segregation are irrelevant Similarly, separate academic high schools for males and females cannot be sustained
for the reason that sex-based segregation is justified by protection of a
countervailing fundamental right. Even if the fundamental right of privacy
259. 532 F.2d 880 (3d Cir. 1976), a(f'd by an equally divided COllrt, 430 U.S.
703 (1977) (Rehnquist, J., not participating).
260. 532 F.2d at 888.
261. Id.
HeinOnline -- 15 Hous. L. Rev. 617 1977-1978
618
HOUSTON LAW REVIEW
IVoI. 15:537
justifies sex-segregated restrooms and athletic locker rooms in coeducational high schools, no rational definition of privacy justifies total segregation of male and female students in classrooms, lunchrooms, and hallways.
Persons of one sex can scarcely assert a legitimate "right" to avoid any
contact whatsoever with persons of the opposite sex. Total segregation of
the sexes in public high schools cannot be sustained under an interpretation
of the Texas ERA that permits sex-based segregation for the protection of
other fundamental rights.
Finally, should the Texas ERA be interpreted to permit the operation
of "separate but equal" high schools for males and females? Assuming that·
the schools are truly equal, does the sex-based segregation, like the racial
segregation in Brown, amount to an official declaration that one sex is
inferior because they are segregated from students of the opposite sex?
Does the sex-based segregation create barriers to individual fulfillment?
Does the sex-based segregation diminish equality of opportunity? If the
answer to one or more of these questions were "yes" or "maybe," the court
should hold that operation of separate schools for male and female students
violates the Texas ERA. What is the justification for separate male and
female schools? In Vorchheimer, the school board justified separate schools
on the ground that students of both sexes might develop better study
habits in single-sex schools, free of distractions attributed to the presence
of students of the opposite sex. Although the burdens or benefits resulting
from separation of the sexes for this reason will affect both sexes equally,
the proof offered to support this justification consisted of an educator's
belief that students in the sex-segregated schools of New Zealand were
more attentive to their studies than students in coeducational schools, and
a showing that among the listings in Who's Who of American Women,
more women had graduated from women's colleges than from coeducational institutions.262 The evidence did not show that students enrolled in
single-sex schools performed at a superior academic level over students
of the same sex and similar ability enrolled in comparable coeducational
high schools.
The preceding discussion suggests that a general doctrine of "separate
but equal" treatment on the basis of sex is an unacceptable interpretation
of the sex equality provision of the Texas ERA. The lesson of Brown v.
Board of Education263 is a forceful reminder that a constitutional guarantee
of equality implemented by separation of persons on the basis of unalterable physical characteristics is more likely to produce or perpetuate inequality than to produce equality. Additionally, approval of separate but
equal treatment on the basis of sex under the Texas ERA would create
formidable burdens for the parties and the court. Consider the questions to
which the evidence should respond. Is there equality of treatment? Is the
262. Id. at 882 & n.2.
263. 347 U.S. 483 (1954).
HeinOnline -- 15 Hous. L. Rev. 618 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
619
reason for separate treatment unrelated to the perpetuation of forbidden
sex stereotyping but otherwise permissible? What are the probable effects,
immediate and future, of the challenged sex-based segregation? Will the
segregation create barriers to individual fullfillment, diminish equality
of opportunity, mark persons of one sex as inferior to persons of the
other sex? Each of the foregoing questions is the occasion for an erroneous
answer. "Separate but equal" treatment on the basis of sex is a principle
of interpretation that endangers the state's constitutional commitment to
sex equality. The Texas courts should not open the door that was closed
by the Supreme Court in Brown v. Board of Education.
The preceding discussion suggests that Texas courts are unlikely to
hold that all traditional forms of official sex-based segregation are forbidden by the Texas ERA. Conversely, judicial approval of forms of sex-based
segregation by reliance upon a generalized "separate but! equal" interpretation of the Texas ERA endangers the constitutional guarantee of sex
equality.
These considerations produce an intermediate principle of interpretation designated as Principle No.3, which, like Principles No. 1 and No.2,
modifies the General Principle of interpretation proposed earlier in this
article and reads: When a prima facie violation of the Texas ERA is established by proof that persons are segregated by sex, the proponent of the
challenged segregation shaU prevail upon a showing that the sexes receive
equal treatment, that the segregation protects a fundamental right, and
that the segregation presents no serious threat to the constitutional guarantee of sex equality.
Many traditional forms of official sex-based segregation should survive
review under Principle No.3. For example, official sex-based segregation
in places where persons dress, bathe, and sleep protects physical or bodily
privacy.264 Assuming that the separate facilities are equal, the conclusion
must also follow that sex-based segregation in these places of physical
privacy cannot present a serious threat to the constitutional guarantee of
sex equality. Requiring males and females to use separate restrooms or
athletic locker rooms scarcely creates barriers to individual fulfillment for
persons of either sex, scarcely diminishes equality of opportunity for persons of either sex, and does not mark persons of one sex inferior to persons
of the other sex. A similar analysis suggests that sex-based segregation
in rooms, wards, or floors of hospitals and bath and sleeping facilities
of college dormitories should survive review under Principle No.3.
Does separation of the sexes in Texas jail and prison facilities violate
the Texas ERA? As a preliminary observation, official sex-based segrega264. One court has stated: "We cannot conceive of a more basic subjl.'Ct uf
privacy than the naked body. The desire to shield one's unclothed figured [sic) from
view of strangers, and particularly strangers of the opposite se:-:, is impelled by elementary self-respect and personal dignity." York v. Story, 324 F.2d 450, 455 (9th
Cir.1963).
HeinOnline -- 15 Hous. L. Rev. 619 1977-1978
620
HOUSTON LAW REVIEW
[Vol. 15:537
tion could never be sustained under Principle No.3 if the plaintiff demonstrates that males and females do not receive equal treatment. There is
good reason to believe that sex-segregated jail and prison facilities, if challenged under the Texas ERA, would be held to violate the constitution for
want of equal treatment for male and female inmates.
A recent study of differences between male and female prison facilities
in selected states reveals that sex-segregated prisons, though surely separate, are seldom equaJ.265 The study concluded that some differences
behveen male and female prison facilities favored males and disfavored
females, but that other differences favored females and disfavored males. 2GO
Although Texas was not among the states reviewed in the study, if it were
shown that male and female prison inmates in Texas do not receive equal
treatment in their respective sex-segregated facilities, the first of the three
indispensable and conjunctive elements proposed in Principle No.3 is not
satisfied.
Assume, however, that all inequalities existing between male and
female prison facilities were corrected. To survive constitutional challenge
under Principle No.3, the sex-based segregation also must protect a
fundamental right and present no serious threat to the constitutional guarantee of sex equality. Total isolation of male and female prison inmates in
separate single-sex facilities obviously is not required in every case to
protect legitimate interests in physical or bodily privacy. Sex-segregated
sleeping areas and bathroom facilities within a single prison sh'ucturo
provide adequate protection for that particular fundamental right. Whatever the danger of sexual assaults upon female inmates by male inmates,
does protection of that fundamental right justify total separation of the
sexes when prison guards and punishment are available to deter such
assaults? It might be argued that the Texas ERA simply has no application
to sex-segregated prisons because deprivation of all contact with persons
of the opposite sex is part of the inmate's punishment. The Texas ERA does
not by its language exempt prisons, and its guarantee seems inconsistent
with a theory of punishment based in part upon total isolation from persons of the opposite sex. If Texas prison inmates were in fact punished by
total isolation from all other persons during the period of incarceration,
which they are not, the practice of inmate isolation would then be based
upon factors other than sex. The preceding discussion, brief as it is, indicates that the Texas ERA, if interpreted in accordance with Principle No.3,
should have a significant impact on the traditional practice of sex-based
segregation in the state's jail and prison facilities.
Official sex-based segregation has been common in sports and athletic
programs of public schools and state colleges and universities. Although a
265. Comment, The Sexual Segregation of American Prisons, 82
(1973).
266. Id. at 1244.
HeinOnline -- 15 Hous. L. Rev. 620 1977-1978
YALE
L.J. 1229
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
621
federal statute, federal regulations and a number of recent judicial decisions have provided some relief for female athletes,267 they have not answered all questions that might arise under the Texas ERA and they do not
purport to decide the status of sex-segregated athletic programs under the
state constitution.
Discussion of single-sex athletic programs should not be confused with
the facts of hypothetical Case No.1, where a female student was not
allowed to try out for the football team solely for reason of her sex. In
Case No.1, the school board had no football team for females, so the
female student could not be denied the opportunity to qualify for the
only available football team. The constitutional question is different, however, when separate teams or programs in each sport are provided for males
and females.
Additionally, the constitutional status of separate, single-sex athletic
programs cannot be resolved by application of Principles No. 1 or No.2.
Principle No. 1 is applicable when the use of sex-neutral criteria produce
a disproportionate impact upon persons of one sex. \Vhen persons are segregated by sex in separate athletic programs, the criterion for segregation is
obviously sex, not a sex-neutral criterion like weight or height. Principle
No.2 is applicable when a gender-specific, physical characteristic unique
to one sex is the basis for different treatment accorded to males or females.
Athletic ability is not a physical characteristic unique to one sex. If it were
clear that all males had more athletic ability than all females, this differential in ability might establish physical characteristics unique to malc's
and females: Every male has more athletic ability than all females;
every female has less athletic ability than all males. These propositions are
demonstrably incorrect, for some males have less athletic ability than SOme
females and some females have more athletic ability than some males. The
male-female overlap in athletic ability makes the generalization defective.
Simply stated, separation on the basis of sex is not the equivalent of classification on the basis of athletic ability. Persons of both sexes have athletic
ability, and a particular level of athletic ability is not unique to persons
of one sex.
Assume that the athletic program of the public institution in question,
be it an elementary or secondary school or a state college or university,
is segregated by sex. Separate physical education classes, organized intramural athletic programs, and interscholastic teams are provided for male
and female students. At the very least, the plain language of the Texas
ERA requires equality of inputs for the sex-segregated athletic programs.
Males and females alike should enjoy equal opportunity to participate in
athletics, to develop their individual athletic abilities, and to reap the
267. For a comprehensive review and discussion of the federal statute and regulations and the major judicial decisiOns, see Comment, Sex Discrimination and Intercollegiate Athletics, 61 IOWA L. REv. 420 (1975).
HeinOnline -- 15 Hous. L. Rev. 621 1977-1978
622
HOUSTON LAW REVIEW
[Vol. 15:537
individual physical, emotional, and possible financial benefits of athletics.
Even if sex-segregated athletic programs are otherwise permissible under
the Texas ERA and Principle No.3, the constitutional text and the first
element of Principle No. 3 require equality of treatment for both sexes
when they are segregated by the rules and policies of public institutions.2GB
Equality of input includes equality of financial support, equality in the
number and quality of teaching or coaching personnel, equality in facilities
and equipment, and equality of official commitment to the "separate but
equal" male and female athletic programs.
Assuming that substantial relative equality of inputs exists in the sexsegregated athletic programs, Principle No. 3 further requires that sexbased segregation be justified by protection of a fundamental right and
present no serious threat to the constitutional guarantee of sex equality.
Protection of the fundamental right of physical or bodily privacy does
not require sex-segregated athletic programs. Adequate protection for this
fundamental right is assured by separate locker room facilities for male
and female students.
Is there another fundamental right protected by sex-segregated athletic programs? The Texas ERA itself guarantees sex equality, and it
would be difficult to characterize this specific constitutional guarantee as
something other than a fundamental right. If sex-segregated athletic programs actually promote sex equality, then "separate but equal" athletic
programs satisfy Principle No. 3 because they promote a fundamental
right, the constitutional guarantee of sex equality, and therefore could not
present a serious threat to the constitutional guarantee of sex equality.
The conclusion that sex-segregated athletic programs promote sex
equality rests upon the proposition that separate programs for males and
females prevent male domination of athletics, a domination so complete
that most or all females will be excluded from participation in organized
athletics. A fear that males will dominate all athletic programs if the
separate programs for males and females are eliminated is based upon
the combined effects of physical differences between the sexes and sexstereotyped traditions and attitudes surrounding athletic participation for
males and females. When these physical differences are translated into
differences in athletic ability between males and females, males generally
will possess a natural athletic advantage over females, at least in certain
sportS.269
Beyond generalizations based upon physical differences between tht·
sexes, sex stereotyping prevalent until recent years at all levels of public
268. ld. at 430-32 (discussing the traditional inequalities existing between malo
and female athletic programs in public educational institutions) .
269. ld. at 429 n.47, quoting C. KLAFS & M. LYON, THE FE.'\tALE ATllLETl:
( 1973): "Anthropometric differences indicate that the female should compete only
with those of her own sex in activities where strength and power are the principal
factors, but she can hold her own against the opposite sex in activities that demand
dO:l.ierity." ld.
HeinOnline -- 15 Hous. L. Rev. 622 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
623
education discouraged many females from pursuing and developing their
athletic interests and abilities. The more acceptable role for females was
to observe and support male athletes, but actual participation in competitive athletics was the domain of males.270 Preservation of sex-segregated
athletic programs after adoption of the Texas ERA thus can be viewed
as a means to guarantee that females enjoy equal opportunity with males
for athletic participation by neutralizing the general athletic advantage of
males and encourging females to compete with and against other females.
Although the athletic programs are segregated by sex, males and females
alike will enjoy equal opportunity to participate in athletics, and no person
is denied equality of opportunity for athletic participation because of sex.
If the preceding analysis of sex-segregated athletic programs appears
consistent with the Texas ERA and Principle No.3, a somewhat different
analysis may suggest that sex-segregated athletic programs are not required
to guarantee that males and females enjoy equality of opportunity for
athletic participation. If each male and female student in the particular
public educational institution is guaranteed the opportunity to participate
in organized athletics, regardless of athletic ability, sex-segregated athletic
programs are not required to guarantee equal opportunity for athletic
participation because each student, male and female, has the right to
participate in athletics. Assuming that every student who desires to participate has an opportunity to do so and cannot be excluded for want of
athletic ability, no male or female is denied the opportunity for athletic
participation "because of sex." All participants in the athletic programs
might be subdivided on the basis of individual athletic ability. If so, athletic ability, not sex, merely would determine the competitive level at which
all students participated. Whether males and females competed with and
against persons of their own or the opposite sex would depend solely upon
a students individual athletic ability compared to the relative individual
athletic ability of all other participating students. Individual interest, not
sex, would determine participation in the athletic program, and individual
athletic ability, not sex, would determine the level of competition within
the program if subdivision of the athletic program were made upon the
basis of athletic ability.
A judgment on the constitutional status of sex-segregated athletic programs may depend solely upon the premise of the particular athletic program. If the athletic program guarantees partiCipation for every interested person, regardless of athletic ability, differentials in athletic ability
between individual students and between males and females generally will
not be a deciding factor in athletic participation. Conversely, if participation in athletic programs depends solely upon athletic ability, separate
but equal programs will guarantee that all females enjoy an equal oppor-
270. ld. at 427-32.
HeinOnline -- 15 Hous. L. Rev. 623 1977-1978
624
HOUSTON LAW REVIEW
[Vol. 15:537
tunity with all males for athletic participation.
Participation in physical education classes is usually compulsory. Because all male and female students are required to participate, athletic
ability is not a criterion for participation. If each student is given an equal
opportunity to develop what athletic ability he or she possesses, sex-segregated physical education classes are not required to guarantee that males
and females enjoy equal opportunity for athletic participation. Sex-segregated physical education classes must promote equality of the sexes to
satisfy an indispensable element of Principle No.3. Because sex-segregated
physical education classes are not required to promote equality of athletic
opportunity for males and females, separate but equal physical education
classes for males and females violate the Texas ERA.
After compulsory physical education classes, the next level of organized athletics is represented by an intramural program and the pinnacle
of organized athletics is represented by the interscholastic team that
competes with the interscholastic teams of other institutions. Participation in
intramural and interscholastic athletics is voluntary. When participation
in intramural athletics is guaranteed for each male and female student
who desires to participate, regardless of athletic ability, separation by sex
within the intramural program is not required to guarantee that males and
females enjoy equal opportunity for athletic participation. When participation in intramural athletics is determined solely by demonstrated athletic
ability, resulting in the exclusion of a certain number of persons lacking
sufficient athletic ability, separate but equal intramural programs for males
and females may be viewed as a means to guarantee that females enjoy
equal opportunity with males to participate.
Use of a sex-neutral physical characteristic, such as athletic ability,
probably will produce an adverse differential impact upon females because
males generally enjoy an athletic advantage over females. Although some
females will qualify and some males will not qualify on the basis of athletic ability, there is reason to believe that substantially more females than
males will be excluded from participation by the sex-neutral criterion of
athletic ability. Principle No.1 requires that the use of sex-neutral physical
criteria resulting in a differential adverse impact upon persons of one sex
be justified by a compelling countervailing governmental interest. No compelling countervailing governmental interest could possibly be advanced
to justify exclusion of a disproportionate number of females from an intramural athletic program. Determining eligibility for participation in an
intramural athletic program solely on the basis of the sex-neutral criterion
of athletic ability violates the Texas ERA when the criterion has a significant and adverse differential impact upon females by denying or abridging
their equality of athletic opportunity.
An intramural athletic program premised on the basis of athletic ability
should therefore include separate but equal programs for males and
HeinOnline -- 15 Hous. L. Rev. 624 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
625
females. Combining the criteria of athletic ability and sex will guarantee
that males and females have an equal opportunity to participate in their
respective sex-segregated intramural programs and will avoid an adverse
differential impact upon persons of one sex. Under these circumstances,
sex-segregated intramural programs satisfy Principle No. 3 because they
promote the fundamental right of sex equality eXl'ressed in the Texas ERA
and would not present a serious threat to the constitutional guarantee of
sex equality.
Eligibility for interscholastic teams is determined solely by athletic
ability. In the hierarchy of athletics, the interscholastic team is the most
visible and most important. Outstanding interscholastic athletes in secondary schools may be offered generous athletic scholarships by colleges and
universities. Outstanding intercollegiate athletes may graduate to a career
in the world of professional football, basketball, baseball, golf or tennis.
Failure to provide separate but equal interscholastic teams for males
and females might well have the effect of excluding all or nearly all females
from interscholastic teams and thus deny females the prestige and potential
rewards of interscholastic competition. Although a male-female overlap in
demonstrated athletic ability exists, the physical differences between the
sexes that give males a general athletic advantage over females would be
most apparent at this level of athletic participation. Only the best athletes
are selected for interscholastic teams, and the best male athletes will enjoy
a natural advantage over the best female athletes in a program where
athletic ability is the sole criterion for participation. In certain sports, few
female athletes are likely to qualify for the interscholastic team in competition \vith male athletes, and the adverse differential impact upon females
will be more significant than for intramural programs where participation
is determined by athletic ability.
In accordance \vith Principle No.1, an adverse differential impact
suffered by one sex through use of a sex-neutral physical criterion can be
justified only by a compelling countervailing governmental interest. No
interest of this character is advanced by excluding females with less athletic
ability than males from interscholastic teams. A violation of the Texas ERA
easily is avoided by combining the criterion of athletic ability with the
criterion of sex in separate but equal interscllolastic teams for males and
females. Basing selection for an interscholastic team on athletic ability and
sex guarantees that both sexes enjoy an equal opportunity for athletic participation, reserves the separate teams for the best male and female athletes,
and satisfies the three conjunctive elements of Principle No. 3.:m
271. This general conclusion that separate but equal interschoL-tstic teams for
males and females do not violate the Te.'I:as ERA is based upon the prevailing structure
of athletic programs. IT there are particular sports where athletes of one se.-< would
enjoy no general natural advantage over athletes of the other se.-<. separate but t'qual
interscholastic teams are not required to guarantee that males and females generally
enjoy equal opportunity for participation. What sports these might be. and Ule amiJ-
HeinOnline -- 15 Hous. L. Rev. 625 1977-1978
626
HOUSTON LAW REVIEW
[Vol. 15:537
The preceding discussion concludes that separate but equal athletic
programs for males and females are constitutionally permissible when eligibility for participation is determined by athletic ability, primarily because
combining the criteria of athletic ability and sex guarantees that persons
of both sexes enjoy an equal opportunity for athletic participation. What
is the fate of the female athlete whose athletic abilities would qualify her
for competition on the male interscholastic team? Is she permitted to
"crossover" and join the male team? If she can crossover from the female
to the male team, the male she displaces will assert the right to crossover
to the female team and to displace a female with less athletic ability
than he demonstrates. Similarly, males who would not qualify for the male
interscholastic team on the basis of athletic ability may seek to qualify
for the female team. If this occurs, there is reason to believe that males
eventually will dominate both the male and the female interscholastic team
in some sports, denying females generally an equal opportunity to participate in interscholastic competition. If females were allowed to crossover
to the male team, but males were denied the right to qualify for the female
team, a clear denial of equality because of sex is presented. The female
athlete is judged solely by her athletic ability because she is female, but a
male athlete who seeks to participate on the female team is not judged
on his athletic ability and is excluded solely because he is male.
Although two decisions from other states with equal rights amendments comparable to the Texas ERA indicate that female athletes should
be permitted to crossover to the male interscholastic team if their athletic
ability warrants,272 these cases largely ignore the possibly devastating
effects upon female participation in interscholastic athletics resulting from
males seeking places on the female interscholastic teams. Separate but
equal interscholastic teams for males and females, where athletes of either
sex are forbidden to crossover to the team of the opposite sex, guarantee
that males and females alike enjoy equal opportunity to participate in
interscholastic competition based on their individual athletic abilities.
Equality of opportunity for participation in interscholastic athletics is the
critical "right," and allowing male and female athletes to crossover to tho
team of the opposite sex does not enhance equality of opportunity for interscholastic participation for males or females generally, but rather threatens
ability of evidence shOwing that neither sex enjoys a natural athletic advantago in n
particular sport, are questions that cannot be answered here. Indeed, as the stereotypical
barriers to full female participation in athletics fall away, it may appear that tho
natural athletic advantage now thought to be enjoyed generally by males over females
in all or some sports is not a function of physical differences between tho sexes, but
is rather a function of individual physical development. Id. at 430. In any evont, if
the evidentiary basis supporting the conclusion that separate but equal interscholastic
teams for males and females do not violate the Texas ERA is shown to be incorrect,
continuation of sex-segregated interscholastic programs could be challenged under the
Texas ERA and Princple No. 3 by reliance upon new evidence.
272. Commonwealth v. Pennsylvania Intersch. Athletic Ass'n, 18 Pa. Commw. Ct.
137, 334 A.2d 839, 841-43 (1975); Damn v. Gould, 85 Wash. 2d 859, 540 P.2d 882,
891-93 (1975).
HeinOnline -- 15 Hous. L. Rev. 626 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
627
female participation in interscholastic competition.
A Texas court at some time will be required to determine whether the
sex equality provision of the Texas ERA has altered the legal rights of
homosexual persons, so this discussion of the amendment concludes by
reviewing the status of same-sex marriages after adoption of the Texas
ERA. If it were clear that Texas law had allowed same-sex marriage before
adoption of the Texas ERA, the amendment might then be construed as
a confirmation of preexisting law. Assuming, however, that same-sex marriages were forbidden before adoption, have the legal rights of homosexual
persons to marry been changed by the Texas ERA?
Confining discussion only to the Texas ERA, the constitutional guarantee of sex equality might be reconcUed with a legal prohibition against
same-sex marriage by observing that the prohibition affects both males and
females equally. Males cannot marry other males and females cannot marry
other females. Male and female homose1.."uals therefore suffer no denial of
equality "because of sex" under the Texas ERA. Male and female homosexuals, treated alike and with perfect equality, have no complaint under
the Texas ERA, for it is their homosexuality, not their sex. that disqualifies them from marriage.
A similar argument offered in defense of a state prohibition upon
marriage of persons of different races was rejected by the United States
Supreme Court in Loving v. Virginia,273 where the Court held that the
state's prohibition upon interracial marriages violated the federal equal
protection clause. Even though black and white persons were treated identically, the Court in Loving held that any racial classification must be
"necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.»214 The Court was satisfied that the state's
only reason for barring interracial marriage was perpetuation of "white
supremacy,»275 an objective no longer permissible under the United States
Constitution.
A prohibition upon same-sex marriages could be distinguished from
Loving under the Texas ERA. Conceding that one objective of the Texas
ERA is elimination of sex discrimination, the state might argue that the
prohibition on same-sex marriages does not discriminate on the basis of
sex, but on the basis of homosexuality. The sex equality pro\>ision of the
Texas ERA could be relevant only if male homosexuals were treated differently under law than female homosexuals. Prohibition of same-sex
marriages is simply not a classification based on sex. and homosexual
persons are not guaranteed equality ,vith heterosexual persons by the Texas
273. 388 U.S. 1 (1967).
274. Id. at 11.
275. Id. at 11-12.
HeinOnline -- 15 Hous. L. Rev. 627 1977-1978
628
HOUSTON LAW REVIEW
[Vol. 15:537
ERA.276 If homosexual persons have a "right" of equality with heterosexual
persons, that right must be found elsewhere, if at all, than in the Texas
ERA.
A somewhat different analysis of a prohibition upon same-sex marriages could, however, produce a contrary result under the Texas EHA.
Although male and female homosexuals are treated equally by the prohibition against same-sex marriages, persons are nevertheless denied the right
to marry because of the sex of their intended marriage partner. A male
may marry a female, but a male cannot marry a male. In a prohibited samesex marriage the parties are denied equality based on the sex of one party
to the marriage. The sex of the parties to the marriage is therefore the qualifying or disqualifying criterion. True, males who desire to marry males are
treated equally with females who desire to marry females, but all persons
who desire to marry a person of the same sex are denied equality with
persons who marry a person of the opposite sex solely for the reason of
one party's sex. This analysis suggests that a prohibition on same-sex mnrriages violates the Texas ERA because persons are denied equality of
opportunity to marry "because of sex."
As proposed in this article by the General Principle of interpretation,
a prima facie violation of the Texas ERA cannot be justified generally
by reference to either a reasonable or compelling countervailing governmental interest. The General Principle is subject to modification in tho
specific situations described for application of three subordinate principles.
Do any of the subordinate principles of interpretation apply if it were
concluded that a prohibition on same-sex marriages violates the plnin language of the Texas ERA? Principle No. 1 is concerned with the differential
impact of sex-neutral criteria upon persons of one sex. A prohibition upon
same-sex marriages is obviously sex-based, not sex-neutral, so Principle No.
1 cannot apply. Principle No.2 is concerned with different treatment for
males and females because of unique gender-specific characteristics. This
principle of interpretation could be applied if the law required persons to
prove their procreative ability before marriage, or required that every marriage result in offsping. But spouses in heterosexual marriages are not
required to procreate, so the physical impossibility of procreation in n
same-sex marriage cannot be used to sustain the prohibition under Principle
No.2. Principle No. 3 is concerned with situations where the sexes might
be segregated permissibly under the Texas ERA. Principle No. 3 cannot
apply when persons are treated unequally because of sex by prohibiting
276. In the only reported case considering the status of same-sex marriage (liter
adoption of a state equal rights amendment comparable to the Texas ERA) the court
concluded that the definition of marriage as a union between a male and a female prohibited same-sex marriage and was not therefore a sex-based classification to which
the state equal rights amendment applied. Singer v. Hara.,. 11 Wash. App. 247, 522
P.2d 1187, 1189-95 (1974). The court's disposition of a aifficult question by relylnF
upon a common law definition of marriage seems objectionable because the statc s
constitution is subordinated to the common law.
HeinOnline -- 15 Hous. L. Rev. 628 1977-1978
1978]
THE TEXAS EQUAL RIGHTS AMENDMENT
629
same-sex marriages and allowing opposite-sex marriages.
Two views of the Texas ERA and same-sex marriage have been presented. One view suggests that a prohibition upon same-sex marriages presents no question at all under the Texas ERA, or presents at most a case
where males and females who desire to marry persons of the same sex are
accorded perfect equality under the Texas ERA. The other view sugge~ ts
that a prohibition upon same-sex marriages violates the plain language of
the Texas ERA. If neither view is clearly inconsistent with the Texas Ell.\,
tradition and hostility toward homose],:ual persons will probably lead the
Texas courts to reject the asserted "right" of persons of the same sex to
marry. Although the Texas legislature has provided that all able-bodied
male and female citizens are subject to service in the state's reserve militia,277 it seems unlikely that the legislature would specifically authorize
same-sex marriages.
IV.
CONCLUSION
Judicial reaction to the sex equality provision of the Texas ERA, represented by the thirteen appellate decisions reviewed in Part II of this
article, generally has been disappointing. Some decisions seem to accord
no greater significance to this constitutional amendment than might be
accorded a relatively trivial legislative amendment to the Uniform Commercial Code. Some decisions fail to appreciate the differences between the
United States Constitution and the Texas Constitution, or fail to appreciate
that the state constitution may confer greater protection for individual rights
than the federal equal protection clause. Few decisions review the objectives and policies embodied in the Texas ERA, and no decision illuminates
a general jurisprudential philosophy toward the constitutional guarantee of
sex equality. The result in some decisions seems plainly inconsistent with
the Texas ERA. In other decisions, the result appears defensible under
the Texas ERA, but the analysis and reasoning seem inconsistent with
the amendment. Some decisions reveal what seems to be judicial impatience with the Texas ERA or resolve difficult questions through conclusions unsupported by explanation or reasoning.
Difficult constitutional questions arising under the Texas ERA already
have been presented to the Texas courts, and there is no reason to believe
that cases arising in the future will be less difficult. It is hoped that the
four principles of interpretation proposed and discussed in Part III of this
article may provide useful assistance to litigants and courts in future cases
alleging a violation of the sex equality provision of the Texas ERA. The
four principles are based upon the understanding that the constitutional
guarantee of sex equality requires male and female Texans to be treated
under law as a single class of human beings, and human beings should not
277. TEX. REv.
eIV. STAT.
ANN. art 5765, § 2 (Vernon Supp. 1978).
HeinOnline -- 15 Hous. L. Rev. 629 1977-1978
630
HOUSTON LAW REVIEW
[Vol. 15:537
be denied individual fulfillment or equality of opportunity for reason of
their sex. Sex stereotyping is rejected by the Texas ERA, and each Texan,
regardless of sex, is guaranteed the right under law to be treated on the
basis of his or her individual abilities, interests and qualifications, unrestrained by artificial legal and official barriers reflecting the stereotyped
generalizations of the past. The privileges and benefits of citizenship, together with the correlative obligations and burdens, are the equal rights
and equal responsibilities of all Texans, male and female alike. The Texas
courts should recognize and give effect to these constitutional objectives;
the courts should not ignore or avoid them. If the cases so far decided
under the sex equality provision of the Texas ERA have fallen short in
full recognition of these constitutional objectives, cases arising in the future
will provide fresh opportunities for full recognition of both the letter and
the spirit of the Texas ERA.
HeinOnline -- 15 Hous. L. Rev. 630 1977-1978
HOUSTON
LAW REVIEW
VOLUME
15
MARCH 1978
NmmER3
BOARD OF EDITORS
ROBERT LYNN PlTI'SFORD
Editor-in-Chief
KING WATERS
Managing Editor
BOBETNYRE
CAROLE RAy RIGGS
CYmmA. FOSTER WESTFALL
W. RussELL, III
Executive Editor
PAT EAST FAUL.Ja.."EIl
LEA NOVAK
JAMES
MOLLY THORNBERRY ?\UTLOCK
Articles Editors
Research Editor
Commcnl and Nato
Editors
Editors
DANIEL FREAL KNox
ANNIE S. GARCY
L. Kmx: KmnNER
D. SCOTT
Research Staff
JACALYN
JANET :MmDLEBROOK ,
Articles Research Editors
TIMOTHY
R
MARY CATUERINE
SUSAN GooDE DOUGLASS
TREADWAY
Am.,;: MOORE
1ndc:c Editor
L. GROVE
C. JACKSON
CAROLYN R. LANGSTON
MICHAEL
BERSCH
JAMES A. BYERLY
KATHARINE GoRDON CR.uN
ELAINE BLOCK DAVIS
TAMEA A. DOLA
JOAN MABIE FISHER
KAREN
Book Revicw Editor
ROGER
NANCY NADA LYNCH
MARK A. MANULIK
?\fARCIA Mc:CAImON
ANNE PACE
STEPHEN E. PruCE
STEPHEN ROSE
CrusToL N. Scno£ssow
S~IOEL
E. Sronns
STEPHEN BnuCE THRASlIEIl
SUSAN
M. TOWNSE::o.1)
Associate Editors
CmusnNA BORLASE
KENT JAY BROWNING
Kn.! KR:rsrnN CuFFoRD
Sm CROWLEY
JUDITH GROUDINE FIl\"K£L
LmnA E. HAsKINS
WII.LIAM J. JOSEPH, Jn.
THOMAS F.lCENNEDy, JR.
DONALD BnuCE McKn."LE'\"
MAR1"J\OSE MILLOY
STANLEY L. STEVENSON
rumy A. TscnOEPE 11
STEPHEN LEE
G.
SIDNEY BUCHANAN
Faculty Advisor
M. F'Lol1)
Secretary
DIANA
HeinOnline -- 15 Hous. L. Rev. 631 1977-1978