Lecture 43 Discrimination VII Gender Discrimination

This Lecture Pages 669-688 Gender Discrimination Reed v. Reed (1971) Intermediate Scrutiny Reed v. Reed (1971) Craig v. Boren (1976) United States v. Virginia (1996)

What level of scrutiny for gender? Note: The ERA never passed Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. This would have likely brought strict scrutiny

Early Cases Bradwell v. Illinois (1873) Minor v. Happersett (1875) Upheld the denial of a law license to a woman Minor v. Happersett (1875) Upheld the denial of a woman the right to vote Overturned by the 19th Amendment Muller v. Oregon (1908) Upheld different work hours for women Goesart v. Cleary (1948) Upheld excluding most women from being bartenders Hoyt v. Florida (1961) Upheld exclusion on women serving on jury unless they asked

Reed v. Reed (1971) Background The Reeds had divorced before their son died intestate Idaho law set forward who could be the administrator When it came to parents, the man had preference over the woman She challenged this law One of the ACLU lawyers was Ruth Bader Ginsburg Question: What will be the level of scrutiny?

Reed v. Reed- II Arguments For Ms. Reed For Mr. Reed Men should not be preference above men for no good reason Gender is a suspect classification This has nothing to do with biological differences between men and women There is no relationship between this law and a government interest For Mr. Reed This statute is for convenience and the estate is very small Gender classifications are not the same as race This law was based on men having higher educational levels than women on average

Reed v. Reed- III Burger, C.J. for a 7-0 Court This is an arbitrary preference and violates the Equal Protection Clause Similarly situated Classification here not reasonable so that similarly situated persons are treated alike This was a sex based assumption Test is for gender classifications: Must be reasonable; and Have a rational relationship to a state objective But this was not strict scrutiny Remains rational basis under Frontiero v. Richardson (1973)

Craig v. Boren (1976) Background Oklahoma had different ages to buy beer 21 for males, 18 for females Based on more likely for males to get in alcohol related accidents A male and a liquor store owner challenged the law Question was rational basis or strict scrutiny Or something “in between” Blackmun in Stanton v. Stanton (1975)

Craig v. Boren- II Arguments For Craig and the Liquor Store Recent decisions work in their favor Sex is a suspect class The state’s statistics are flawed For Oklahoma Correct test is rational basis The 21st Amendment gives states wide latitude on alcohol sales Statistics back up this law on alcohol related crimes State is justified by these statistics

Craig v. Boren- III Brennan, J. for the Court Five justices are joining fully in this opinion Stewart concurs in judgment, Blackmun mostly concurs The Court comes up with a standard of intermediate scrutiny 1) Classification by gender must serve an important governmental objective, and 2) Must be substantially related to achieving those objectives The Court will reject laws based on loose fitting characterizations The Court does not buy the state’s statistics here Note that this is ruling that the law discriminates against MEN

Craig v. Boren- IV Rehnquist, J. dissenting He would apply only a rational basis standard of review for gender claims Thinks women can invoke a more stringent standard than men in claims Then notes this is discrimination against males Does not believe that intermediate scrutiny has any place Rational basis or strict scrutiny

Mississippi University for Women v. Hogan (1982) Single sex education case A women only nursing school Opinion (5-4) by O’Connor She thinks it shows a stereotype that only women are nurses This was a man challenging the all female policy

United States v. Virginia (1996) Background This involves the Virginia Military Institute (VMI) Ranked only below the service academies for military training George Marshall graduated here and Stonewall Jackson was an instructor It was a males only institution that the state argued should stay that way Little privacy and constant surveillance VMI on at district court but reversed at 4th Circuit The state then started an alternative all women’s academy They then won at the 4th Circuit in a divided vote Plaintiffs still objected

United States v. Virginia- II Arguments For the United States (Clinton Administration and plaintiffs) There is no exceedingly persuasive justification for single sex education This should be subject to strict scrutiny The all women’s academy is not the proper remedy, it is to make VMI co-educational No proof that admitting women would harm the academy For Virginia (and VMI) Single sex education can be beneficial to both sexes Women already have other educational alternatives The women’s academy alleviates the problem Stick to intermediate scrutiny

United States v. Virginia- III Ginsburg, J. for a 7-1 Court Thomas, J. recused They rule against VMI VMIL does not remedy the violation as it is not an equal opportunity Exclusion of women is not equal protection VMI is not unsuitable for women Women have successfully entered the national military academies The alternative remedy is not the same educational opportunity It is inferior for many reasons Key: Added to gender is “exceedingly persuasive justification” Puts more teeth into intermediate scrutiny

United States v. Virginia- IV Rehnquist, C.J. concurring in judgment He thinks that the majority elevated the standard of review for gender claims Scalia, J. dissenting Majority does not account for the tradition of the academy Let the people of Virginia decide this issue He thinks the Court has went too far with the “exceedingly persuasive justification” test But this is still not strict scrutiny!

Some case upheld on gender Michael M. v. Superior Court of Sonoma County (1981) Upholding age differences in statutory rape laws Rostker v. Goldberg (1981) Justices (6-3) vote down a challenge to the male only Selective Service Act However, women play an important and growing role in the military, but still are not subject to the draft

Next Lecture Pages 688-694 Discrimination based on Sexual Orientation Romer v. Evans (1996)