Equal Protection (Gender Classifications)

Question 1

Old cases on gender classifications before intermediate security.

Answer 1

Reed v. Reed:
Law that gives preference to a male candidates for the estate is unconstitutional. Gender-based classificatios subject to RBR. In practice, Court applies rational basis with bite.

Fontiero v. Richardson:
A Law that requires female members of the military to prove their husbands were actually dependent in order to receive benefits is unconstitutional. Government classifications on the basis of sex are inherently suspect but receive RBR

Question 2

If it is a Gender Classification →

Answer 2

Gender Based Classifications must meet intermediate scrutiny and sometimes intermediate scrutiny plus. Gender Based Classifications must: (1) Serve important government interest, (2) Be substantially related to the achievement of those objectives. (U.S. v. Virginia/ Craig v. Boren). If facially neutral, must show discriminatory impact/purpose. (Feeney). If not, then RBR.

Question 3

U.S. v. Virgina

Answer 3

In U.S. v. Virginia, the Court found that the prohibition of women from Virgina Military Academy was unconstitutional. The government’s arguments that same sex education was beneficiary and their traditional form of education at VMI would transform if the school were to allow women was not enough for to survive intermediate scrutiny.

Question 4

Craig v. Boren

Answer 4

In Craig v. Boren, the Court held that a law prohibiting the sale of alcohol to males under 21 but permitting women to buy it at age 18 was unconstitutional. Government arguments supporting traffic safety and citing minor statistical differences in arrests for alcohol-related arrests was not enough to survive intermediate scrutiny.

Question 5

If you are trying to prove existence of gender classifications →

Answer 5

Use Feeney, Aiello, and Dobbs.

Question 6

Feeney

Answer 6

In Feeney, the Court held that a MA law that gives preference to veterans for jobs was constitutional even when the overwhelming majority of veterans are males. There was no finding of a discriminatory purpose because the benefit is for any veteran which includes women.

Question 7

Geduldig v. Aiello

Answer 7

In Geduldig v. Aiello, the Court held that CA’s disability program which excluded certain disabilities resulting from pregnancy was constitutional and not a gender classification. Underinclusive nature of the program does not make it unconstitutional. Program runs on state funds only, states are allowed to address one problem at a time.

Question 8

Dobbs v. Jackson

Answer 8

In Dobbs, the Court held that a state’s regulation of abortion is not a sex-based classification and not subject to heightened scrutiny. The Court found that regulation of a medical procedure that only one sex can undergo does not trigger heightened scrutiny unless the regulation is a “mere pretext”.

Question 9

Policy for different types of scurinty in gender based classifications

Answer 9

Rational Basis: Arg For→ here is not a lack of representation, no discrete or insular minority, women have voting power and are not politically excluded.
Argument against → not taking a close enough look

Intermediate Scrutiny: Arg For→ Preserve some laws that benefit women. It makes it easier to survive if you want a law that benefits women. There are differences between men and women: biological differences (we are less suspicious when a law classifies on basis of race). Critique→ judicial management (we are adding a third tier and making it more confusing, what is the difference between compelling and substantial), more cases, standards of review are supposed to constrain legislators and allow judicial bias to creep in. A judge can go in and go in with his or her personal policy preference and make it look like they’re following it when they are not.

Strict Scrutiny: Arg For→ Gender is an immutable characteristic, political powerlessness (no representatives, access to votes), history of discrimination. Also for race, we are very worried any time a law is passed with race discrimination because it’s inherently suspect. Forces the court to take a really close look. Same argument for race, can argue on the basis of gender. Critique→ there are some reasons why we should have gender -based classifications, will deter legislators from passing laws to address issues

Question 10

If it is a question about a law that benefits women →

Answer 10

Government justifications that ARE permitted under intermediate scrutiny are: (1) classifications benefitting women that are designed to remedy past discrimination and (2) gender classifications benefitting women that are based on biological differences. Government justifications that are NOT permitted under intermediate scrutiny are: (1) gender classifications benefitting women based on role stereotypes (not permitted in theory).

Question 11

If it is a question about a law that remedies past discrimination →

Answer 11

Califano v. Websiter. In Califano, the Court found that SS benefits structured in a way that women receive slightly higher benefits than men is constitutional and survives intermediate scurinty. The reduction of disparity in economic conditions between men and women has been recognized as an important government objective.

Question 12

If it is a question about a law benefits women based on biological differences →

Answer 12

Nguyen v. INS, and Michael M. v. Sonoma

Question 13

Nguyen v. INS

Answer 13

In Nguyen, the Court held that a federal law making it easier for a child born to a U.S. citizen mother to gain citizenship than a U.S. father was constitutional. The government’s interest is making sure that there is a biologcal and actual connection between a U.S. citizen father and a child overseas is valid. The statutory requirements are substantially related to that interest. However, the critique of this decision rests on the assumption that mothers automatically have a relationship with their child at birth while the father is allotted a demonstrated opportunity to prove a relationship with the child.

Question 14

Michael M. v. Sonoma

Answer 14

In Michael M,, the Court held that a CA statutory rape law that criminalizes behavior by males only was constitutional because the state demonstrated an important interest in this classification to protect underage females and it has demonstrated that the interest is substantially related to the actions taken.

Question 15

If it is a question about a law that benefits women based on role stereotypes →

Answer 15

Orr v. Orr, MS v. Hogan, and Rostker v. Goldberg

Question 16

Orr v. Orr (1979)

Answer 16

In Orr, the Court held that an AL law that allowed wives to collect alimony payments from their husbands after divorce but does not provide the same for husbands to collect from their wives is unconstitutional.

Question 17

Rostker v. Goldberg (1981)

Answer 17

In Rostker, the Court held that a federal law requiring that men enlist in the draft at 18 was constitutional even though it did not require the same of women. The government has an important interest in creating a combat ready military and women are not permitted to serve combat roles.

Question 18

Mississippi v. Hogan

Answer 18

In Hogan, the Court held that a prohibitoin on male enrollement at a nursing program was unconstitutional. Gender classificatios that beenfit one sex may be permitted if they “intentionally and directly assist members of the sex that is disproportionately burdened”. Here, the state showed no disproprotione burden on women at the university or in the nursing program because almost all nuses were female.