CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 34: Gender Discrimination
1. Central Theme: substantive limits on government provided by the
Equal Protection Clause in the XIV Amendment with respect to
gender classifications.
2. Standard of Scrutiny for Gender Classifications
A. Prior to the Second World War, the Supreme Court upheld a
number of laws facially discriminating on the basis of gender, such as
Muller v. Oregon (1908) (substantive due process case), Goetsart v.
Cleary (1948).
B. At first, the Court applied rational basis scrutiny in Equal
Protection challenges to gender classifications, e.g. Hoyt v. Florida
(1961) (upholding state law that gave women automatic exemption
from jury service unless they wanted it, while men were eligible for
jury service unless they sought and were granted an exemption.
C. Move to intermediate scrutiny
 Reed v. Reed (1971) [C p. 755](Court struck down a gender
classification for the first time, but said it was applying
rational basis scrutiny although it arguably was viewing
gender classifications as something that merited more
searching review)
 Frontiero v. Richardson (1973) [C p. 755]
 Craig v. Boren (1976) [C p. 758] (see Class 5: Prudential
Standing)
 United States v. Virginia (1996) [C p. 761]
D. To survive intermediate scrutiny, a regulation must serve
important governmental objectives and be substantially related to
achievement of those objectives.
E. Is intermediate scrutiny the appropriate level of scrutiny for
gender classifications?
3. Proving a gender discrimination
A. Facial gender classifications (like facial race discrimination; see
cases above at 2)
B. Facially gender neutral laws: require both discriminatory impact
and discriminatory purpose Personnel Administrator of
Massachusetts v. Feeney (1979) [CB p. 686, 766]
C. There must be a gender classification to get more than rational
basis review: Geduldig v. Aiello (1974) (CB p. 793) (effectively
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overruled by Pregnancy Discrimination Act, 42 U.S.C. §
2000(e)(k).
D. Gender Discrimination Benefiting Women
i. Based on stereotypes
 Orr v. Orr (1979) [C p. 769]
 Weinberger v. Wiesenfeld (1975) [C p. 770
 Califano v. Goldfarb (1977) [C p. 770]
 Wengler v. Druggists Mutual Insurance Co. (1980) [C p.
771]
 Mississippi University for Women v. Hogan (1982) [C p.
771]
 Sex-specific Statutory Rape Laws: Michael M. v.
Superior Court (1981) [C p. 774]
 Draft Registration: Rostker v. Goldberg (1981) [C p. 776]
ii.
Designed to remedy past discrimination: Califano v.
Webster (1977) [C p. 780]
iii. Gender Classifications Benefiting Women Because of
Biological Differences Between Men and Women:
Nguyen v v. INS (2001) [C p. 781]
4. ILLEGITIMACY CLASSIFICATIONS (DISCRIMINATION
AGAINST NONMARITAL CHILDREN)
A. What level of scrutiny is used? Clark v. Jeter (1988) [C p. 804]
B. Laws that provide benefits to marital children but deny them
to ALL nonmarital children are generally struck down: Levy v.
Louisiana (1968) [c p. 805], Trimble v. Gordon (1977) [C p. 805]
C. No bright-line test for laws that provide a benefit to some
nonmarital children, but deny to others: Lalli v. Lalli (1978) [C p.
806], Labine v. Vincent (1971) [C p. 806], Mathews v. Lucas (1976)
[C p. 806], Jiminez v. Weinberger (1974) [C p. 806]
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