Gender
Bradwell v. State of IL (1872)
Bradwell wanted to be a lawyer, passed tests but ct. wouldn’t
give her license. She brought claim under Privileges and
Immunities clause (decided the day after Slaughterhouse; EPC
only applied to freed slaves); denied. Women’s right to
employment/contract isn’t protected.
Bradley switches
from
Slaughterhouse
because women
are different.
Bradley: joined majority but switched from
Slaughterhouse (where he dissented);
his
Minordistinguished
v. Hapersett (1874)
position saying women’s right to seek
Denied
Fed. Privileges and
Immunities
included right of women to vote in state elections.
employment/contract
freely
isn’t protected.
Muller v. OR (1908)
Upheld maximum hours for women working (under the Commerce Clause).
Goeseart v. Cleary (1948)
Upheld law that women can’t be bartenders unless their husbands/fathers own bar; state is free to
draw sharp lines between the sexes, despite social changes. Applied rational basis.
BIG CHANGE – WWII, 1950’s/60’s, 1964 Civil Rights Act
Reed v. Reed (1971)
Ct. stuck down law giving preference to men over women administrators of estates Ct. applied
“rational basis” but said means must be “substantially related to ends” (actually unarticulated
heightened scrutiny).
Fronteiro v. Richardson (1973)
Struck down federal law giving male members of armed forces an automatic dependency allowance
for wives but requiring women to prove that husbands were dependent. Plurality advocated
treating women as a suspect class, but failed to get a majority vote.
“Real Differences”
Women vs. Men
Geduldig v. Aiello (1974)
Craig v. Boren (1976)
3.2% beer law: males under 21 couldn’t
purchase it but women over 18 could. Ct. found
it unconstitutional under EPC. Court applied
intermediate scrutiny, said classifications by
gender must serve “important governmental
objectives” and must be “substantially related” to
achievement of those objectives.
CA disability insurance system didn’t cover
pregnancy-related disabilities; upheld under
rational basis because only distinguished
between pregnant persons and all other persons
(men and women).
Personnel Administrator of Mass. v. Feeney
(1979)
C Court rejects a sex discrimination challenge to
a MA law granting absolute lifetime preferences
to veterans for state civil service positions even
though the presence operates overwhelmingly to
the advantage of males. 98% male, 1.8% female.
Challenger claims that it denied EP to women.
Caben v. Mohammed (1979)
[Powell] invalidated NY law granting mother but
not the father of an illegit child the right to block
the child’s adoption by withholding consent.
Example of overbroad generalization in genderbased classifications. No showing of a substantial
relationship btwn distinction and state interest
in promoting adoption of illegit children
Rostker v. Goldberg (1981)
Constitutional to have selective service for men
only because women are excluded from combat
(but court didn’t get into why men/women were
situated differently here)
Michael M (1981)
Miss. University for Women v. Hogan (1982)
State women’s-only nursing school; man allowed
to audit class but denied admissions. Ct. used
Craig test: discriminatory means must be
substantially related to “exceedingly
important gov. objectives” and school’s policy
was struck down.
Statutory rape law punished only men. Ct.
recognizes that men and women are not always
similarly situated; slightly higher standard
than rational review.
J.E.B. v. Alabama (1994)
Alabama sued JEB to establish paternity; state
used all preemptory challenges to strike men
from jury (stereotypical). Ct. said state must
have an “exceedingly persuasive justification” for
striking on the basis of sex.
U.S. v. Virgina (VMI) (1996)
Court rejected strict scrutiny but required any
classifications based on sex to have “exceedingly
persuasive justification”: “important gov.
objectives” + “substantially related.
Ngyun v. INS (2001)
Court upholds a law that treated children born
out-of-wedlock to one citizen-parent and one
non-citizen parent differently depending on
whether it was the mother or the father who was
a citizen.


Kennedy (Majority): Upheld decision
based on the difference between a
mother’s and a father’s relationship to the
potential citizen t the time of birth and
substantially related to the achievement
of 2 important governmental objectives:
biological parent-child relationship and
citizen parent have an opportunity to
develop a relationship and the US.
Dissent: Law was not narrowly tailored to
the goal of verifying the parent-child
relationship. There are sex neutral
alternatives. Mother’s birth relation is not
uniquely verifiable by the INS.