Preferential Economic Treatment for Women: Some Constitutional and Practical Implications of Kahn v. Shevin

The apparent willingness on the part of three members of the Supreme Court to sustain legislation granting economic benefits to a selected subgroup of women, while failing to deal with the similar racially suspect classification issue in Defunis, is simultaneously puzzling and disturbing. The key to the result reached in Kahn may be the size of the benefit involved, or the fact that a state tax statute was involved; \u27 yet the underlying principles in the two cases are logically indistinguishable and the differing approaches taken by certain members of the Court in the two cases are difficult to reconcile... Thus, at least with respect to statutes economically favoring women over men, and possibly with respect to sex discrimination in general, Kahn appears to have generated the impression among lower state and federal courts that romantic paternalism is once again an acceptable basis for legislation--that legislatures may validly pass laws based on traditional assumptions of economic dependency of women as wives and mothers and economic superiority of men as bread winning husbands and fathers, without regard to the economic realities of modern life. Certain questions remain unresolved, demanding at least a brief exploration: the effect of Kahn on subsequent Supreme Court sex discrimination cases decided this term; further possible effects of the decision on various state domestic relations laws; and whether, apart from the question of its analytical soundness, Kahn represents either a socially or legally desirable and workable standard of treatment for women or any other previously disadvantaged minority group.\u27 The last section of this Note will attempt to deal with these questions, although it does not purport to provide the best or only answers