442 U.S. 256 (1979), argued 26 Feb. 1979, decided 5 June 1979 by vote of 7 to 2; Stewart for the Court, Marshall and Brennan in dissent. The issue in Feeney was whether a Massachusetts statute granting an absolute lifetime preference to veterans in public employment discriminated against women in violation of the Equal Protection Clause of the Fourteenth Amendment.
The case was brought in 1975 by a female civil servant who, despite achieving higher grades on civil service examinations than male veterans, was repeatedly passed over for employment and promotion in favor of those veterans. The federal district court twice found the statute unconstitutional. The state appealed, supported in the Supreme Court by the solicitor general of the United States.
It was undisputed that more than 98 percent of the veterans in Massachusetts were male, that the veterans preference applied to approximately 60 percent of the public jobs in the state, and that its impact on public employment opportunities for women was severe. Relying on *Washington v. Davis (1976) and *Arlington Heights v. Metropolitan Housing Development Corp. (1977), however, the Court made clear that the constitutional standard required showing a discriminatory purpose, not merely a disproportionate impact.
Making a twofold inquiry into the legislative purpose, the Court held first that the statute was neutral and not based on gender because it drew a distinction between veterans and nonveterans, not men and women, and thus also burdened significant numbers of male nonveterans. Second, looking at the totality of legislative actions establishing and extending the statute, the Court held that its enactment did not reflect intentional gender-based discrimination. Announcing a tough test for determining discriminatory purpose, the Court held that even if discriminatory results were foreseeable, the constitutional standard required a finding that the legislature acted because of them, not merely in spite of them.
Justices Thurgood Marshall and William Brennan dissented, arguing that because the impact on women was both extreme and foreseeable, the state had the burden of establishing that gender considerations played no role in the legislation, a burden it failed to meet.
Gerald N. Rosenberg