Gender Based Classification EPC
Gender based classifications receive INTERMEDIATE scrutiny.
Arguments for lower standard:
1. Historical. Framers of the 14th amendment clearly intended to outlaw race discrimination. It is less clear that they intended to prohibit all kinds of sex discrimination.
2. Biological. Unlike with race, there ARE meaningful differences between the sexes which may warrant different treatment.
3. Social. Like affirmative action, there may be plausible reasons (diversity) to segregate the sexes.
Craig v. Boren (1976) RoL
Traditional rule for intermediate scrutiny. To withstand challenge, a classification based on gender must serve an important government interest and the means chosen must be substantially related to achieving that interest.
Facts: Government interest was road safety, which was an important interest HOWEVER the means were not substantially related (underinclusive):
- Only banning this very weak beer,
- Small percentage of males causing accidents,
- Why not ban all alcohol to those age groups?
anti-classification approach of EPC
United States v. Virginia (1996)
ALTERNATE test for Intermediate scrutiny.
To defend gender based government action, government must demonstrate AN EXCEEDINGLY PERSUASIVE interest, where the means are SUBSTANTIALLY related to achieving that interest.
Anti-Subordination Principle. "Inherent differences between men and women . . . remain a cause for celebration, but not for denigration of the members of either sex, or for artificial constraints on an individuals opportunity.
If gender discrimination is being used TO KEEP PEOPLE DOWN or to RESTRICT UNIQUE EDUCATIONAL OPPORTUNITIES, the court is going to apply this version of intermediate scrutiny.
Geduldig v. Aiello (1974)
Discrimination because of pregnancy IS NOT a denial of equal protection. Impact one.
Reproductive physiology is a real source of difference between sexes and it is noninvidious discrimination.
Congress passed Pregnancy Discrimination Act in response.
Michael v. Supreme Court (1981)
Since the burden of teenage pregnancy falls almost entirely on the female, discrimination against men through the operation of statutory rape laws IS NOT a violation of the EPC.
Rostker v. Goldberg (1981)
Male only draft laws ARE NOT violative of the EPC.
Laws that benefit women and disadvantage men
Generally, a denial of equal protection. With exceptions.
Equal Rights Amendment
Would look like 13th and 14th Am but apply to women.
In the 1970s, looked like it would pass but lost steam.
By 1982, movement for the amendment collapsed but it affected the Court's interpretation of sex discrimination cases.
VMI (1996) Scalia's Dissent
Majority opinion effectively outlaws single sex public school education.
This school was a historical tradition that doesn't violate the Bill of Rights.
Court should be preserving society's values and not revising them.
United States v. Virginia (1996) compared to Grutter v. Bollinger (2003)
The diversity interest in educational approaches was shot down in VMI case when there was lower scrutiny and greater deference. In Grutter, diversity interest was upheld under strict scrutiny.
There was deference in Grutter because of antisubordination principle but in VMI, antisubordination but lack of deference which makes it look like anticlassification.