Constitutional Law II
Sex Discrimination
Spring 2005
Con Law II
1
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 14th nor 15th amd gave the franchise
 Susan B. Anthony arrested in 1872 for trying to vote
Spring 2005
Con Law II
2
Sufferage
19th Amendment (1920)
Spring 2005
Con Law II
3
Precursors
Early cases

Bradwell v. State of Illinois (1972)
 Practicing law not a 14th 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]
Spring 2005
Con Law II
4
Emergence of Mid-Level Scrutiny
Reed v. Reed (1971)


Administrator preferred over adminstratrix
State rationale: men were better w/ money
 Irrational?
 Worse than random?
Spring 2005
Con Law II
5
Frontiero v. Richardson
(1973)
Females vs. Males as military dependents


Who is discriminated against? Men or women?
gets only
Irrational? Or empirically based?
4 votes
 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
Spring 2005
Con Law II
6
Craig v. Boren
(1976)
Honk-n-Holler Convenience Store, Stillwater, OK
Spring 2005
Con Law II
7
Craig v. Boren
(1976)
Curtis Craig (on Con
right)
Law II and his lawyers
Spring 2005
8
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
18 times
as often
Closeness of fit


Underinclusiveness = .18%
Overinclusiveness = 98%
Spring 2005
Con Law II
very good
very bad
9
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”
Spring 2005
Con Law II
10
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” ?
Spring 2005
Con Law II
11
US v. Virginia
(1996)
Is sex never a legitimate
criterion?

real biological differences
 unlike race, national origin

Thus, sex can be a legitimate discriminator
NB: one
 Because “sometimes” relevent (unlike
race) of
consequence
heightened scrutiny
 Intermediate scrutiny
Single-sex education


is examination of
actual ENDS
Diversity in educ experieces
but is this the “actual” purpose, or some posthoc rationalization
Spring 2005
Con Law II
12
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?
Spring 2005
Con Law II
13
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
Spring 2005
Con Law II
14
US v. Virginia
Spring 2005
(1996)
Con Law II
15
Gedulidig v. Aiello
(1974)
Proxy classifications


Is pregnancy a proxy for sex
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?
Spring 2005
Con Law II
16
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?
Spring 2005
Con Law II
17
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
Spring 2005
Con Law II
18
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
Spring 2005
Con Law II
19
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?
Spring 2005
Con Law II
20
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


Spring 2005
Is this invidious, based on bias or stereotype?
Or because women are not eligible for combat?
Con Law II
21
Rostker v. Goldberg
(1981)
Relatedness of MEANS to ENDS
Register/draft
only men
therefore, men &
women are not
similarly situated
why does
even the
dissent
avoid this?
perfect fit
male-only
troops
the restriction on combat
troops is statutory, and
endorsed by Congress
So how can there be any EP problems?
 Army consists of more than just combat troops

in which case, exclusion of women from draft unnecessary
 Exclusion of women from combat itself violates EP

Spring 2005
Male bonding a compelling interest? White male bonding?
Con Law II
22
Rostker v. Goldberg
(1981)
Relatedness of MEANS to ENDS
Register/draft
only men
good fit
minimize
opposition to
draft & war
Would drafting women
subject war & war planning
to greater public scrutiny?

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
Spring 2005
Con Law II
23
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 midlevel scrutiny for cong’l AA), overruled by Adarand.
Spring 2005
Con Law II
24
Spring 2005
Con Law II
25