1. Lecture 43 Discrimination VII
Gender Discrimination

2. 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)

3. 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

4. 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

5. 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?

6. 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

7. 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)

8. 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)

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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!

17. 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

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