1. Constitutional Law II Spring 2005Con Law II1 Sex Discrimination

2. Spring 2005Con Law II2 Precursors Second-class citizens Women often could not enter into contracts, hold property, control their earnings, or sue  e.g., Calder et ux. v. Bull et ux. (1798) Disenfranchised Neither 14 th nor 15 th amd gave the franchise  Susan B. Anthony arrested in 1872 for trying to vote

3. Spring 2005Con Law II3 Sufferage 19 th Amendment (1920)

4. Spring 2005Con Law II4 Precursors Early cases Bradwell v. State of Illinois (1972)  Practicing law not a 14 th amd. Privilege/Immunity  Women unfit for the practice of law "The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." Goesaert v. Cleary (1948)  upholding law restricting women bartenders Paternalism  Muller v. OR (1908) [ upholding min wage for women  Hoyt v. FL (1961) [jury exemption for women]

5. Spring 2005Con Law II5 Emergence of Mid-Level Scrutiny Reed v. Reed (1971) Administrator preferred over adminstratrix State rationale: men were better w/ money  Irrational?  Worse than random?

6. Spring 2005Con Law II6 Frontiero v. Richardson (1973) Females vs. Males as military dependents Who is discriminated against? Men or women? Irrational? Or empirically based?  Administrative convenience not a shibboleth Suspect Class? – Indicia of Suspectness History of discrimination based on stereotype  ongoing Structural impediments to political power Discrete and insular minority  Discrete: high visibility of the characteristic  Insular: no easy ingress/egress gets only 4 votes

7. Spring 2005Con Law II7 Craig v. Boren (1976) Honk-n-Holler Convenience Store, Stillwater, OK

8. Spring 2005Con Law II8 Craig v. Boren (1976) Curtis Craig (on right) and his lawyers

9. Spring 2005Con Law II9 Craig v. Boren (1976) 3.2% Beer Women: 18 + Men: 21 + Drunk Driving Men (18-20): 2% arrest rate Women:.18% arrest rate 93% of all DUI arrests are men Closeness of fit Underinclusiveness =.18% Overinclusiveness = 98% 18 times as often very good very bad

10. Spring 2005Con Law II10 Craig v. Boren (1976) Is 98% overinclusiveness unconstitutional? I.e., is it a good proxy for people who are likely to drink and drive? Depends on the standard of review  RB: For sure  SS: No way  Intermediate (mid-level) ? Mid-level “classifications by gender must serve important govt’l objectives and must be substantially related to achievement of those objectives”

11. Spring 2005Con Law II11 US v. Virginia (1996) All-male VMI ENDS: prepare citizen soldiers MEANS: rigorous training (adversative method)  which is unsuitable to women SCRUTINY: is exclusion of women “substantially related” to important gov’t interest? an “exceedingly persuasive justification” ?

12. Spring 2005Con Law II12 US v. Virginia (1996) Is sex never a legitimate criterion? real biological differences  unlike race, national origin Thus, sex can be a legitimate discriminator  Because “sometimes” relevent (unlike race)  Intermediate scrutiny Single-sex education Diversity in educ experieces but is this the “actual” purpose, or some post- hoc rationalization NB: one consequence of heightened scrutiny is examination of actual ENDS

13. Spring 2005Con Law II13 US v. Virginia (1996) ENDS: Benefits of adversative training  would be lost in co-ed environment  the “rat system” Why isn’t this benefit equally as important as ethnic diversity in law school? Inclusion vs Exclusion?

14. Spring 2005Con Law II14 US v. Virginia (1996) REMEDY: Separate but equal at Equal?  student body  faculty  curriculum (military orientation)?  Alumni connections? Scalia (dissent) gender-based development differences  can be recognized by a classification scheme  decries radical egalitarianism

15. Spring 2005Con Law II15 US v. Virginia (1996)

16. Spring 2005Con Law II16 Gedulidig v. Aiello (1974) Proxy classifications Is pregnancy a proxy for sex based on Is defining disability not to include pregnancy discrimination based on sex?  therefore, subject to mid-level scrutiny Men and women treated equally  both denied pregnancy disability benefits Although men NEVER get pregnant, women don’t ALWAYS become pregnant  i.e., there are SOME women in the benefited class  Does that keep this from being sex-based discrim?

17. Spring 2005Con Law II17 Gedulidig v. Aiello (1974) Proxy classifications Could the state exclude from disability coverage  Tey-Sachs Disease  Sickle Cell Anemia  Hysterectomies (while funding vascectomies) Congress overrules Geduldig Pregnancy Discirmination Act  Constitutional?

18. Spring 2005Con Law II18 Michael M. v. Sup. Ct. (1981) Statutory rape Only men covered by criminal statute ENDS: health & welfare (of women) (teen pregnancy)  An important interest MEANS: criminalize the conduct leading to teen preg.? criminalize one party to the conduct - men

19. Spring 2005Con Law II19 Michael M. v. Sup. Ct. (1981) Statutory rape Only men covered by criminal statute ENDS: health & welfare (of women) (teen pregnancy)  An important interest equalize risk and pain of teen pregnancy MEANS: criminalize the conduct leading to teen preg.? criminalize one party to the conduct – men  classification is an excellent fit

20. Spring 2005Con Law II20 Michael M. v. Sup. Ct. (1981) MEANS Is this classification (men only criminally liable) “substantially related” to the state’s goal Or would extending the burden to women to an even better job?

21. Spring 2005Con Law II21 Rostker v. Goldberg (1981) 1. Standard of Review Intermediate (mid-levl) scrutiny  tempered by court’s deference to congress in military/national security matters 2. Are ENDS Important? Raise & support armies  including supplying combat troops 3. Are MEANS substantially related to ends? Conscription of men, not women  Is this invidious, based on bias or stereotype?  Or because women are not eligible for combat?

22. Spring 2005Con Law II22 Rostker v. Goldberg (1981) Relatedness of MEANS to ENDS So how can there be any EP problems?  Army consists of more than just combat troops in which case, exclusion of women from draft unnecessaryexclusion of women from draft unnecessary  Exclusion of women from combat itself violates EP Male bonding a compelling interest? White male bonding? Register/draft only men male-only troops perfect fit the restriction on combat troops is statutory, and endorsed by Congress therefore, men & women are not similarly situated why does even the dissent avoid this?

23. Spring 2005Con Law II23 Rostker v. Goldberg (1981) Relatedness of MEANS to ENDS A principal object of equal protection is to equalize burdens  Spreading the burden makes the political process a more effective means for correcting gov’t abuse Register/draft only men minimize opposition to draft & war good fit Would drafting women subject war & war planning to greater public scrutiny?

24. Spring 2005Con Law II24 Califano v. Webster (1977) ENDS Social Security pension benefits Adjusted for social bias against women  Is this a permissible/important END for congress? MEANS (classification) Calculating high wage period benefits women Standard of Review Still mid-level scrutiny, but AA often survives  But see, e.g., Lamprecht v. FCC (DC Cir. 1992) (Thomas, Cir. Justice): WBE preference unconst’l despite Metro v. FCC (MBEs were const’l under mid- level scrutiny for cong’l AA), overruled by Adarand.

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