Eslinger v. Thomas

• Decision Date: 01 April 1971
• Docket Number: Civ. A. No. 71-153.
• Citation: 324 F. Supp. 1329
• Court: U.S. District Court — District of South Carolina
• Parties: Victoria Lamonte ESLINGER, for herself and for all other women similarly situated, Plaintiffs, v. Lovick Oliphant THOMAS, as Clerk of the Senate of South Carolina, Earle Elias Morris, Jr., as President ex-officio of the Senate of South Carolina, and as a representative of the Senators of South Carolina, and Edgar Allan Brown, as President Pro Tempore of the Senate of South Carolina, and as Senator of Barnwell County, South Carolina, and all other Senators of the State of South Carolina, jointly and severally, who are similarly situated, and their successors in each office, Defendants.

324 F. Supp. 1329

Victoria Lamonte ESLINGER, for herself and for all other women similarly situated, Plaintiffs, v. Lovick Oliphant THOMAS, as Clerk of the Senate of South Carolina, Earle Elias Morris, Jr., as President ex-officio of the Senate of South Carolina, and as a representative of the Senators of South Carolina, and Edgar Allan Brown, as President Pro Tempore of the Senate of South Carolina, and as Senator of Barnwell County, South Carolina, and all other Senators of the State of South Carolina, jointly and severally, who are similarly situated, and their successors in each office, Defendants.

Civ. A. No. 71-153.

United States District Court, D. South Carolina, Columbia Division.

April 1, 1971.

Laughlin McDonald, Columbia, S. C., Charles Morgan, Jr., and Norman Siegel, Atlanta, Ga., and Jean Hoefer Toal, of Belser, Belser & Baker, Columbia, S. C., for plaintiffs.

Daniel R. McLeod, Atty. Gen., Michael W. Tighe, Asst. Atty. Gen., Columbia, S. C., and E. N. Zeigler of Zeigler & Townsend, Florence, S. C., for defendants.

ORDER

HEMPHILL, District Judge.

The plaintiff in this action seeks declaratory and injunctive relief against the defendants who are officers and members of the Senate of the State of South Carolina. The substance of the plaintiffs' complaint is that she was denied a position as page in the Senate of South Carolina solely because of her sex. She urges that the denial of employment as a page solely on the basis of sex is in violation of the equal protection clause of the Fourteenth Amendment. The matter came to be heard on the question of the plaintiffs' entitlement to the preliminary injunction and temporary restraining order sought by motion made at the time of the filing of the complaint. That is the sole issue before the court and the only issue which will be considered.

In considering a motion for preliminary injunction several factors are of primary importance. The party seeking such relief must show the court that it has a reasonable likelihood of prevailing on the merits of the suit. Upon such showing, there must be a weighing of the probability of success in the action with the damage that would result during the pendency of the action. The nature of the rights asserted and the public interest must also be considered. King v. Saddleback Junior College Dist., 425 F.2d 426 (9th Cir. 1970).

The defendants' answer sets forth three defenses, the substance of which is as follows. The first defense is that the state senator who recommended the plaintiff recommended others more highly and, therefore, that she was not denied employment because of her sex. The second defense is that the policy of hiring only males as Senate pages is reasonable and therefore not a violation of the rights of the plaintiff. The third defense is that the plaintiff has not petitioned the defendants for the relief she requests, which petition is provided for by the rules of that body, and that until such petition is made, judicial relief is unwarranted. At this point in the proceedings, the court is skeptical of the merit of the first and third defenses. While the court does not now attempt to make any final determination of their merit, it would appear that the recommendation was withdrawn or others more highly recommended, as a result of the Senate's policy, rather than for some reason unrelated to the plaintiff's sex. The fact that the Senate passed a resolution, referred to by defendants' counsel in argument, calling for a defense to the present action would indicate that the third defense was of little substance.

The court is of the opinion that consideration of the propriety of a grant of temporary relief requires that close attention be given the defendants' second defense. In that regard, the plaintiff argues strongly that the defendants must show a compelling interest to justify any practice of discrimination according to sex. It would not appear that defendants could show such compelling interest in this instance and, if that standard were proper, the plaintiff would be entitled to the temporary relief. See Henry v. Greenville Airport Commission, 284 F.2d 631 (4th Cir. 1960).

The court does not think that the Senate must demonstrate a high degree of necessity or a compelling interest as justification for its policy, assuming that the Senate's policy in employing pages does discriminate. The invocation of the doctrine of special or strict scrutiny in an area to which it has not heretofore been applied is not to be lightly undertaken by a court of this level. As understood by this court, there are two branches to the compelling interest doctrine. The first requires that classifications based upon suspect criteria be justified by a compelling interest. The second branch requires a compelling interest if the right affected by the classification is a "fundamental right". Though the argument of counsel places reliance upon both branches, reliance upon the second is misplaced. The rights which have been afforded the special protection in the cases which have applied the doctrine upon the second ground are the right to pro-create,¹ the right to vote,² and the right to travel from state to state.³ The right to be Senate page is not such a "fundamental right."⁴

The plaintiff urges that, under the first branch of the doctrine, all classifications according to sex are suspect and should be justified only by a compelling interest. This branch of the doctrine originally dealt with classification according to race⁵ but was perhaps made to apply to classification according to wealth.⁶ One court has held that sex was such suspect basis for classification.⁷ This court does not agree. There are very real differences between males and females. The fact that undeniable differences exist makes it natural and necessary that laws classify according to sex. The selective service law, the right of the married woman to dower, and the obligation of the parent to support the child are everyday examples of laws which discriminate according to sex. Thus, there is nothing sinister or suspect in the treating of the sexes differently. The grievance expressed by the plaintiff is with a particular situation in which she feels there is unreasonable discrimination against her sex. In this circumstance, however, the court's role will be limited to considering whether the classification is "arbitrary or wanting in any rational justification" as only such classification would offend the Equal Protection Clause.⁸

The Senate advances several reasons for its policy of not hiring females as pages. The reasons generally deal with the appearance of impropriety that may be given by a young woman's performance of some of a page's duties. The court does not know whether such reasons would meet even the traditional standard of reasonableness required by the Equal Protection clause. It was pointed out also that the pages have a personal relationship with and perform personal services for the members of...