David Schraub declares himself more worried by John Roberts's position on pay equity than that on church-state separation:
Though this case [Wallace v. Jaffree] is nearer and dearer to my heart, I recognize it is far more controversial. Roberts's position on gender equality, by contrast, seems absolutely fringe. The "market" should decide what a woman's job is worth? If there was ever a clear cut example of a market failure, it seems like this was it (60 cents versus a dollar -- come on). And Roberts's comparison of judicial efforts to remedy rather blatant sex discrimination in the work place to "central planning" is just absurd. This is precisely the type of ideological blindness to clear facts that I hoped Roberts would avoid.Perhaps due to my own political leanings -- socially liberal, economically moderate -- I take precisely the opposite view, and consider Roberts to be more in the mainstream on the question of comparable worth than he is on mandatory prayer in schools.
My support is slipping.
Through the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, Congress required that employers not discriminate on the basis of race and gender in remunerating workers. However, the principle of "equal pay for equal work" can be read in two ways: narrowly, to force employers to pay equally for people doing the exact same work; or broadly, to force employers to pay equally for people doing work with the same levels of education, skill, experience and responsibility. It is the difference between paying two long-haul truckers equally regardless of their gender, and paying a kindergarten teacher the same amount as the long-haul trucker because various factors are weighed and the conclusion is that the former's work is "worth" the same as the latter's.
The first reading is well-accepted both in law and society. Most Americans probably would be offended by paying two people with the same jobs differently, and a woman who brought suit in such a case likely would win with ease. The second reading is far more controversial, because it means that conscious decision-makers, rather than the invisible hand of the market, will determine how particular work should be paid. In overturning the district court's order to Washington State, Anthony Kennedy (in 1985, still on the 9th Circuit Court of Appeals) wrote, "Neither law nor logic deems the free market system a suspect enterprise."
The comparable worth movement has stalled since its heyday in the 1970s and 1980s, and nowadays the focus seems to be more on ensuring that women are not discouraged from entering better-paid careers. Instead of pushing to have English professors paid the same as engineers, we are outraged by the notion that women are inherently less capable of being engineers. While a couple of states such as Washington and Minnesota have implemented comparable worth for their own employees, it is not a widespread scheme, nor one that courts have been inclined to mandate in either the public or private sector.
Roberts's comparison of comparable worth to central planning is not wholly unreasonable, as there is an element of central planning involved in determining how much a job is worth rather than letting the market settle the matter. That female-dominated professions often are underpaid is true, but even that can be corrected by the market eventually, as we are seeing now with the massive demand for nurses, which is driving their wages up -- just as an economist would predict.
On the other hand, Robert's belief that the First Amendment permits a state to mandate a silent time when legislative history shows that the state clearly intended that time to be used for a religious purpose strikes me as a significant departure from settled law and practice. That purely voluntary, un-coercive religious action should be protected is indisputable, and school officials should be instructed in the difference between having a teacher lead his class in prayer (bad) and letting a student do her book report on the Bible or Koran (good). However, Roberts would have states force students to participate in a prayer period, which has no legitimate purpose related to education and good citizenship -- which is what our public schools are supposed to be doing for children.