Gender Classifications - Constitutional

Arguments for heightened review for gender classifications

1. Sex is immutable

2. Women are less politically powerful than men

3. Women have suffered a history of discrimination

Arguments against heightened for gender classifications

1. Legislatures should be given leeway to accommodate for the biological difference between men and women

2. Women constitute over 50% of the population

Jurisprudential themes in the early cases

1. State/paternalism/mainetenace of separate spheres okay

2. Justified by supposed biological differences between men and women

3. The 14th amendment was not focused on women

Bradwell v. Illinois (1872): challenge to a bar on women lawyers under the 14th amendment privileges or immunities clause.

1. Held: Upheld. While the Court agreed that all citizens enjoy certain privileges and immunities, which individual states cannot take away, the right to practice law in a state’s court is not one of them. According to the “law of the Creator,” woman’s natural roles don’t include lawyering. Important to maintain the “respective spheres of man and woman.” (Justice Bradley).

   1. (Confirming the narrow reading of a clause given in the Slaughter-House cases).

Muller v. Oregon (1908): Challenge to Oregon law that set maximum hours for employment for women (10 hour/day limit in factories and laundries)

1. Held: Upheld. State has an important interst in protecting women.

2. Brewer: “That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious … [B]y abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this day to day, tends to injurious effects on the body, and a healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race.”

   1. Argued by attorney Louis Brandeis: expert reports on the harmful physical, economic and social effects of long working hours on women

West Coast Hotel v. Parrish (1936): employee of WCH sued to recover the difference between the wages paid to her and the minimum wage fixed by state law. Minimum Wages for Women Act.

1. Held: Upheld. The “protection of women” is a valid interest justifying these laws. Establishment of minimum wages for women was constitutionally legitimate.

Goesaert v. Cleary (1948): statute allows women to work as a bartender only if she was the wife or daughter of the bar owner

1. Held: upheld. The Constitution “does not preclude the States from drawing a sharp line between the sexes.” MI legislature could have determined that allowing women to bartend could “give rise to moral and social problmes against which it may devise preventive measures.”

Hoyt v. Florida (1961): rule in which men were automatically on jury rolls unless they opted out, but women were only on the rolls if they opted in. after all male jury convicted Mrs. Hoyt for murdering her husband, she appealed the decision to the FLA supreme court.

1. Held: upheld. Unanimous. Statute was based on a reasonable classification. Women were “still regarded as the center o home and family life,” so the states could relieve them from the civic responsibility of jury duty unless they themselves determined that such service was consistent with their own “special responsibilities.”

Reed v. Reed (1971): Idaho law that preferred men over women in choosing the administrator of an estate

1. Held: Application of heightened form of rational basis review is required. Law not constitutional.

2. Burger: "[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment. . .[T]he choice in this context may not lawfully be mandated solely on the basis of sex."

Frontiero v. Richardson (1973): Lieutenant in the Air Force sought a dependent’s allowance for her husband. Federal law: wives of members of the military automatically became dependents; husbands of female members of the military were not accepted as dependents unless they were dependent on their wives for over one-half of their support.

1. Held: by a plurality – Gender classifications should be subjected to “close” scrutiny

2. Brennan: Applying a strict standard of review to the sex-based classification, the Court found that the government's interest in administrative convenience could not justify discriminatory practices. The Court held that statutes that drew lines between the sexes on those grounds alone necessarily involved "the 'very kind of arbitrary legislative choice forbidden by the Constitution.'"

The Equal Rights Amendment

1. Submitted to States in 1972

2. “Equality of rights under law shall not be denied or abridged by the United States or by any state on account of sex.

3. Argument against : the ERA would lead to women in the military, unisex bathrooms, and destroy traditional families by liberating men from alimony obligations

4. Result: ERA died in 1982 (35 of the needed 38 states ratified the amendment)

Craig v. Boren (1976): Oklahoma law prohibited the sale of “nonintoxicating” 3.2 percent beer to males under the age of 21 and to females under the age of 18.

1. Held: (INTERMEDIATE SCRUTINY IS BORN)-Gender classifications must serve important government objectives and must be substantially related to achievement of those objectives

   1. Brennan: the statistics relied on by the state of Oklahoma were insufficient to show a substantial relationship between the law and the maintenance of traffic safety. Generalities about the drinking habits of aggregate groups did not suffice.

United States v. Virginia (1995) : single-sex military Academny. VMA says that its institute is an expression of diversity of learning opportunities in state higher education. To allow women in the program would require VMI to scrap or modify the adversative method because 1) women couldn’t hack it; 2) concerns about interference with privacy; 3) it would create a different learning environment; 4) it would interfere with the espirit de corps the school is trying to create

1. Held: Ginsburg: VMI’s male-only admissions policy was unconstitutional. VMI faled to show that the male-only policy was created or maintained in order to further educational diversity. VWIL did not offer women the same benefits that VMI offered men. “all gender based classifications today must be evaluated with heightened scrutiny.”

2. Take aways

   1. The court appears to adjust the test for sex-based classifications – “exceedingly persuasive justification”

   2. The court essentially outlaws separate-sex higher education if there are any significant differences beteween the male-only program and the female-only programs

Orr v. Orr (1978) – law requiring husbands, but not wives, to pay alimony upon divorce. Two purposes: 1) providing for needy spouses, with sex as a proxy; 2) compensating women for discrimination during marriage.

1. Held: Brennan: While both purposes are sufficiently important, the means are not substantially related to the ends since individualized hearings are available

2. "classifications by gender must serve important governmental objectives." The Court rejected several objectives proposed by the Alabama Court of Civil Appeals, holding that gender was not an "accurate proxy" for financial need.

Mississippi University of Women v. Hogan (1981): nursing school limits its enrollment to women

1. Held: Paternalism toward women is not an important government objective

2. Held: state has failed to show decision to establish school was based on anything other than a stereotype of nursing as women’s work. No “exceedingly persuasive justification”

3. Held: all female nursing school is not substantially related to a compensatory objective

4. O’Connor: The state's primary argument, that the policy constituted educational affirmative action for women, was "unpersuasive" to the Court since women traditionally have not lacked opportunities to enter nursing. If anything, argued Justice O'Connor, the statute "tends to perpetuate the stereotyped view of nursing as an exclusively women's job."

Michael M v. Superior Court of Sonoma County (1980): statutory rape law that applies only to men and not women.

1. Held: The purpose of preventing teenage pregnancy is an important government objective. Classification is substantially related to the objective because not clear that gender neutral...