Intermediate Scrutiny - Gender Discrimination Flashcards
How to prove gender classification
(1) Text of the Statute is Facially Discriminatory or
(2) the statute has a discriminatory impact and purpose
Frontiero V. Richardson (servicemen and women dependants) (First case to apply intermediate level scrutiny)
The Appellant, Sharron Frontiero (Appellant), asserts that a military practice that automatically allowed the wives of male officers to be considered as dependents and thus receive the rights of dependents, but required the female officers, in order to get the benefits for their husbands, to actually prove that their husbands were dependent upon them, is an unconstitutional gender based classification.
Craig V. Boren (Drinking Light Beer)
Facts: An Oklahoma statute prohibited the sale of non-intoxicating 3.2% beer to males under the age of 21 and to females under the age of 18.
Holding: The Oklahoma statute at issue is unconstitutional – it invidiously discriminates against males 18-20 years of age.
Analysis:
Is there an important governmental objective for the classification? Yes! The governmental objective underlying this statute is the enhancement of traffic safety through the regulation of drinking and drive.
o Is the classification substantially related to the safety objective? No! The statistical evidence offered by the government to support the gender-based regulation of alcohol purchases does not closely achieve the safety objective. The statistics establish that 0.18% of females and 2% of males in the age group 18-20 years are arrested for drunk driving. While such a disparity is not trivial in a statistical sense, it can hardly form the basis for employment of a gender line as a classifying device.
United States v. Virginia (VMI)
Facts: Since 1839, the Virginia Military Institute (VMI) had been a male-only college that sought to train “citizen-soldiers.” IN 1990, the AG sued VMI claiming that the admissions policy violated the Equal Protection Clause. Virginia eventually proposed a remedial plan under which a parallel program would be developed for women. The Virginia Women’s Institute for Leadership.
Holding: Virginia has not provided an adequate remedy for its equal protection violation.
Analysis:
The remedial plan purposefully discriminates on the basis of gender; therefore heightened scrutiny applies. The Court applied a stricter standard of review here than intermediate level scrutiny – the Court held that there must be an exceedingly persuasive reason for the gender-based classification.
VWIL fails as a remedy because it is inferior to the existing men’s institution – it does not afford women the opportunity to experience the rigorous military training for which VMI is known. Instead, the VWIL program uses a cooperative method of education. Further, VWIL’s student body, faculty, course offerings, and facility hardly match VMI’s. Nor can VWIL graduates anticipate the benefits associated with graduating from VMI.
Read Differences between the sexes
In analyzing gender classifications, the Court looks to see whether a law treats women and men differently. If it does, it has asked whether the difference in treatment corresponds to a relevant different between the genders. In some cases, the Court has shown willingness to allow accommodations for the supposed real differences between men and women.
Rotsker V. Goldberg (Women in the Military)
Facts: A federal statute required men, but not women, to register for the draft. The registration was intended as a prelude to a draft in a time of national emergency. This future draft would be characterized by a need for combat troops.
Holding: The Court upheld this statute - there is a real difference in this case that justifies the classification – men are eligible to participate in combat and women are not. Further, the Court gives deference to military decisions.
Michael M. Sonoma County Superior Court (Pregnancy)
Facts: A statute defined statutory rape as an act of sexual intercourse accomplished with a female where the female is under the age of 17.
Holding: The Court upheld the statute as constitutional. The Court recognized that the statute served an important governmental purpose – to prevent illegitimate pregnancies. The statutory classification between males and females is further justified because of the real difference between males and females – women can get pregnant and males cannot.
Nguyen V. INS (Family Rights)
Facts: Nguyen was born in Vietnam to unmarried parents. His father was a US citizen and his mother was a citizen of Vietnam. Nguyen came to the US at age 6 and was raised by his father. At age twenty-two, after being convicted of a felony, the INS initiated deportation proceedings against him. While the matter was pending, Nguyen’s father obtained an order of parentage from state court based on a DNA test and Nguyen sought to claim US citizenship.
Rule of Law: Under federal law, a child born abroad to unmarried parents automatically acquires US citizenship if the child’s mother is a US citizen. By contrast, a child born to unmarried parents does not automatically become a US citizen if only the child’s father is a US citizen. Rather, the child can only be naturalized if a blood relationship is established between the child and the father, the father agrees in writing to pay support for the child, and the father obtains formal recognition of the child before he turns 18.
Holding: The Court upheld the federal statute. The difference between men and women in the birth process is a real one and the principle of equal protection does not forbid Congress to address the problem at hand in a manner specific to each gender.
Analysis: The governmental interests served by the classification are (1) assuring that a biological parent-child relationship exists and (2) Ensuring that the child and the citizen parent have demonstrated opportunity or potential to develop a meaningful relationship. There is a real difference between men and women when it comes to the opportunity to have a meaningful relationship with a child. This difference stems from the birth of the child – it is the woman who gives birth the child and a relationship is formed at this point The same relationship does not result from the birth of a child in the case of an unwed father.
Sexual Discrimination and Affirmative Action for Women
i. The Court applies heightened scrutiny to gender classifications that seek to benefit women. The Court has recognized that providing a remedy for past societal discrimination based on gender is an important governmental interest.
Califano V. Webster (Social Security Act)
Facts: A provision of the Social Security Act provided that monthly old-age benefits were to be computed based on the average monthly wage of a worker during certain statutorily defined benefit computation years. The statutory formula permitted woman to exclude more lower earning years from this average than men could exclude.
Holding: The Court upheld the statute as constitutional on the basis that reduction of the disparity in economic condition between men and women caused by a long history of discrimination against women could constitute a sufficiently important governmental purpose.
It is important to note that intermediate level scrutiny permits past societal discrimination to qualify as an important state interest. However, in the racial discrimination setting, the past racial discrimination must be systematic in order to survive strict scrutiny.
Justifications for Intermediate Scrutiny for Gender Discrimination
Parallel between how this country discriminated against blacks and how they discriminated against women.
Sex, like race and national origin, is an immutable characteristic determined solely by birth.
Congress itself has concluded that classifications based on race are inherently invidious through adoption of the Civil Rights Act of 1964.
