Dorothy Kenyon and Pauli Murray: Their Quest for Sex Equality in Jury Service

Jennifer Brinkley, Dorothy Kenyon and Pauli Murray: Their Quest for Sex Equality in Jury Service,   
Tennessee Journal of Race, Gender, and Social Justice, Forthcoming

This article will look at the history of women and jury service, focusing on the work both Kenyon and Murray did to persuade courts that sex discrimination, like race discrimination, was unconstitutional. Jury service was an issue that advocates of equality could agree upon and Kenyon and Murray would use every resource at their disposal to obtain compulsory service for women. Part II gives a brief history of how women were excluded from juries in the United States. It provides popular culture references of the time, along with public opinion about whether women should serve. This clarifies the history surrounding jury service. Part III provides context on the lives of Dorothy Kenyon and Pauli Murray before they became a team. Their litigation strategy was strongly influenced by division in the women’s equality movement over how best to proceed to seek relief from sex discrimination. Some thought legislative change would be best, while others believed judicial reinterpretation was the proper pathway. The division, and its impact, is discussed. Part IV begins with a history of jury service litigation before various courts. In 1966, Kenyon and Murray co-authored the ACLU’s brief for a federal court case, White v. Crook, where they successfully challenged an Alabama statute restricting jury service only to white males. Prior to White, all sex-based discrimination challenges arguing a Fourteenth Amendment violation had failed. White wanted to successfully link the civil rights and women’s rights movements by showing the inferior status both groups experienced. This section gives details about the White case — the facts, arguments made, and ultimate victory. Following their work on White, Kenyon and Murray encouraged the creation of the ACLU Women’s Rights Project, which would place Professor Ruth Bader Ginsburg at the helm. In her brief for Reed v. Reed, where the United States Supreme Court unanimously struck down an Idaho law preferring males over females in administrating estate matters, Ginsburg gave credit to both Kenyon and Murray by listing them as co-authors. The Reed decision marks the first time the Supreme Court declared a statute unconstitutional based on sex-based differentials using the Equal Protection Clause of the Fourteenth Amendment. A discussion of the ACLU Women’s Rights Project and subsequent cases drawing on the strategies put forth in White provides evidentiary support of the important work Kenyon and Murray did to effect change. They built, step by step, a foundation on which Ginsburg, on behalf of the Women’s Rights Project, could be successful in arguing sex discrimination cases. Part V concludes with a summary of their friendship, outside of Kenyon and Murray’s activism.