The Supreme Court on sex discrimination: Searching to justify a different result
On April 17, 1905, the Supreme Court decided Lochner vs. New York, which involved New York’s regulation of the number of hours a bakery employee could work. The Bakeshop Act limited employees to no more than 60 hours a week or 10 hours a day. Bakery owner Joseph Lochner permitted an employee to work more than the proscribed amount and he was convicted of violating the statute. He appealed under the Due Process Clause of the 14th Amendment. As framed by the court, the issue was what test was to be used in assessing legislation which restricted an individual’s right to enter into contract.
The court found that if the legislation was a “fair, reasonable and appropriate” exercise of the state’s police power, there was no constitutional violation. On the other hand, if the regulation was found to be an “unreasonable, unnecessary and arbitrary interference” with the right of the individual’s right to contract, the regulation would be unconstitutional.
The court found that the right of an individual to make a contract was an individual liberty right under the 14th Amendment. Here, the court found that there were no reasonable grounds for the state’s interference and declared the Bakeshop Act unconstitutional. Now, a standard had been announced.
A mere three years later in 1908, the Supreme Court heard the case of Muller vs. Oregon, which involved legislation which limited the number of hours a woman could work in “ any mechanical establishment or factory or laundry.” The limitation was no more than 10 hours a day—the same limitation in Lochner. One would think this decision would be a slam dunk. The problem (as seen by the justices) was that the employees in Muller were women! (Keep in mind, this was before the 19th Amendment.) What would the justices do? Justice David J. Brewer observed in the opinion, “History discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength.”
What was the state’s interest which would support this limitation? The court opined, “As healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.”
The court found that the public interest in “healthy mothers” and “vigorous offspring” was enough to approve, in a 9-0 decision, Oregon’s limitation on the number of hours a woman could work.
With the same factual background, why the different result? Because the court found “the differences between the sexes” in 1908 justified the different result. Indeed, in Justice Brewer’s opinion he noted that their Muller decision did not “in any respect” undercut the outcome in Lochner. While this decision today is difficult to understand, the positive side is it added greater impetus to the women’s suffrage movement and ultimately led to the passage of the 19th Amendment.
Donald Applestein is a retired attorney and an experience guide in the National Constitution Center’s Public Programs Department.