[SOUND] Having just discussed race discrimination under equal protection, I now want to talk about sex discrimination under equal protection. A threshold question here is, what level of scrutiny should be used with regard to sex discrimination? Should it be treated the same as race discrimination and receive strict scrutiny, where the government's discrimination would have to be shown necessary to achieve a compelling government purpose. Should it be just rational basis reviewed, or should the court create something in the middle? It wasn't until 1971, in a case called Reed versus Reed, that the Supreme Court for the first time declared unconstitutional sex discrimination. This involved a state law that said that if a person died without having designated an administrator for the estate, a series of priorities would be used in determining who would be the administrator. If the person's spouse was still alive, that would be the administrator. If there was no spouse, but the person had children, male children were preferred over female children. If there were no children, but the individual had siblings, male siblings were chosen over female siblings. And the Supreme Court declared this unconstitutional. But it was also clear it was not using anything more than just rational basis review, where the government action just has to be rationally related to a legitimate government purpose. There are few cases in the early 1970s where the court appeared to be pointing towards strict scrutiny, treating sex discrimination like race discrimination. In Frontiero versus Richardson in 1974, four of the Supreme Court Justices quite eloquently said that there's a long history of sex discrimination. Sex discrimination should receive the same scrutiny as race discrimination. In the book, The Brethren, by Bob Woodward and Scott Armstrong, they said that Justice Potter Stewart would have been a fifth vote for that position. But he was convinced that the Equal Rights Amendment to the Constitution was about to be passed. The effect of the Equal Rights Amendment would have been strict scrutiny. So he said wait for that to come about. Now the Equal Rights Amendment was not passed. And by two years later it was clear there were not going to be five votes on the Supreme Court for strict scrutiny. So in Craig versus Boren in 1976, the Supreme Court created a new level of scrutiny. It's called intermediate scrutiny. Craig versus Boren involved an Oklahoma law that said that women could buy low alcohol, so called 3.2 beer at age 18, but men could not buy low alcohol, 3.2 beer, until age 21. The State of Oklahoma produced statistics that showed that men between 18 and 21 were much more likely than women between 18 and 21 to be arrested for, or in accidents because of, driving while intoxicated. The Supreme Court declared the Oklahoma law unconstitutional. And for the first time the Supreme Court said that sex discrimination would have to be shown to be substantially related to an important government purpose. It wouldn't have to be a compelling purpose, like for race discrimination. The government wouldn't have to show that this action was necessary, that there was no other alternative, like in race discrimination. We just have to show that the means, the law, was very closely related to, substantially related to, achieving the objective. And the court said that while Oklahoma of course had important, even a compelling interest in traffic safety, this means was not substantially enough related. The debate though over whether sex discrimination should be treated the same as race discrimination continues to this day. Though interestingly, the nature of that debate has changed over the last four decades. In the early 1970s and in the mid '70s when Craig versus Borne was argued, women's rights groups, feminists, argued that sex discrimination should be treated the same as race discrimination. They said like race, sex is a characteristic we're born with. It is essentially immutable. It's not fair to discriminate against people on account of characteristics they don't choose. Also, there's a long history of sex discrimination in this country. Laws that seem to be based on biological difference between men and women are all often, as we look back in hindsight, based on stereotypes. And yet now, some women's rights groups say it'd be better to keep intermediate scrutiny rather than strict scrutiny. Their view is that laws that discriminate against women are likely to be struck down under intermediate scrutiny. But affirmative action programs benefiting women are more likely to be upheld under intermediate scrutiny, so a lower level of review would be better for women. I think for the Supreme Court that is why they chose immediate rather than strict scrutiny. There was an underlying sense that whereas only in the rarest of circumstances are there relevant differences the law should take into account based on race, but there are biological difference between men and women that the law should be able to take into account. The most recent Supreme Court case to address this question of what level of scrutiny is used for sex discrimination was United States versus Virginia in 1996. Virginia had a law that said that only men could attend the Virginia Military Institute, a state university. The state said that at Virginia Military Institute there was a form of assaultive education, that was their exact words, designed to, and again I'll quote them, break down the male ego. They said they didn't need that kind of education with regard to women. When the state was sued for having a male only school, it decided to create a leadership training program in a neighboring women's school near Baldwin College. The Supreme Court in a seven to one decision declared the Virginia law unconstitutional. Ironically, Justice Thomas could not participate, because he had a son attending the Virginia Military Institute. Here Justice Ruth Bator Ginsberg wrote the opinion for the court. That seems appropriate because she was the lawyer who argued so many of those cases I was alluding to before the Supreme Court in the early 1970s, trying to advance gender equality. Only Justice Scalia dissented. Justice Ginsberg writing for the court reaffirmed that sex discrimination should have to meet intermediate scrutiny, substantially related to an important government purpose. But she added something here. She said in order for the government to engage in sex discrimination, there has to be quote, an exceedingly persuasive justification. It seems that the court is trying to push up the level of scrutiny, increase the rigor of judicial review. And that's been the law ever since, though interestingly now, 20 years later, there have been relatively few sex discrimination cases before the Supreme Court over the last couple of decades. Now as with race, the issue comes up as to sex, how is the existence of a sex classification proven. We know the level of scrutiny, but how is it determined if there is gender discrimination? And here the law's exactly the same as it is with regard to race. There are two alternative ways of proving that the government is discriminating based on sex. One is it that gender classification exists right on the face of the law. The law, in its very terms, draws distinction between people based on sex. The cases that I just mentioned illustrate this. Craig versus Boren, the Oklahoma law said women could buy a low-alcohol beer at age 18, men could not buy low-alcohol beer until age 21. The classification was right on the face of the law. Or another example, United States versus Virginia, the Virginia law said, men could attend the Virginia Military Institute, women could not. Alternatively, if a law is facially gender-neutral, proving that it's sex discrimination requires demonstrating both discriminatory impact and discriminatory intent. This is the same as I talked about just a bit ago with regard to race. Let me give you an easy example, it's a case called Feeney versus Personnel Administrator of Massachusetts. Massachusetts had a law that gave a preference in hiring for state jobs to veterans. At the time of the litigation almost half the employable aged men in Massachusetts were veterans, but less than 1%of the women in Massachusetts were veterans. And a challenge was brought saying this denies equal protection. Then notice the law was facially sex neutral. It said a preference would be given to veterans, there was no mention of gender. But the Supreme Court upheld the Massachusetts law. The Supreme Court said, when a law is facially gender-neutral, proving that it's a gender classification, requires demonstrating both that is has a discriminatory impact against women, and also that it has a discriminatory intent against women, or of course, against men. The Supreme Court said that though the Massachusetts law had a discriminatory impact, there's no evidence that its underlying purpose was to harm women. Or another very simple example, imagine if a city has an ordinance that says in order to be a police officer or firefighter, a person has to be at least 5'10", and be at least 150 pounds. Statistics show that over 40% of men, almost half of men actually, will meet that height and weight requirement, but only about 2% of women will meet that height and weight requirement. How is it treated? It is not a gender classification in the eyes of the Supreme Court and the law, unless the plaintiffs could prove that the purpose behind the requirement was to disadvantage women. Otherwise, it gets what I've called rational basis review and as I've said, the government almost always wins under rational basis review. One other question has been considered by the Supreme Court with regard to sex discrimination, and that's how should gender classifications benefiting women be treated? Now the law is clear that whether the gender classification benefits women or disadvantages women, it's still going to have to meet intermediate scrutiny. But the court has also articulated a couple of other principles that are used in evaluating gender classifications benefiting women. One thing the court has said is that gender classifications that benefit women will not be allowed if they're based on role stereotypes. The Supreme Court has said that many sex-based classifications that appeared to benefit women, in reality perpetuate destructive stereotypes. An example, Alabama had a law that said in case of a divorce a woman could be awarded alimony, but a man never could be awarded alimony. The Supreme Court said that's based on the stereotype that women are always economically dependent on their husbands, but men are economically independent of their wives. The court declared that unconstitutional. There have been a number of Supreme Court cases where the law says, if a woman's husband dies, she automatically gets survivor benefits. But if a men's wife dies he gets survivor benefits only if he can prove that he was dependent on her income. Such laws always are declared unconstitutional, because again they're based on the stereotype of economically dependent women and economically independent men. On the other hand, the Supreme Court has said there can be gender classifications benefiting women, if they're designed to remedy past discrimination or difference in opportunity. Example, a case called Califano versus Webster. The Social Security administration used a different formula to calculate Social Security benefits for women than the one that it used for men. The formula advantaged women. The Supreme Court upheld that it's constitutional. The court said, there's a long history of wage discrimination against women in the American economy. The court said the difference in the formula is allowed, because it's meant to compensate for that. Or another example, a case called Schlesinger versus Ballard. The Navy had a regulation that a man who was not promoted within six years had to leave the Navy. A woman could go much longer before she would have to leave the Navy if there wasn't a promotion. The court said that at that time only men could serve in combat. The court said that men had more opportunities for the kinds of conduct that would earn promotions. The court said that the difference in the formula is meant to deal with the differences in opportunities and that therefore, this is constitutional. So, that's what the law is with regard to sex discrimination. As I said one of the interesting things is, how few cases the Supreme Court has decided In the last quarter century on the topic.
