Intermediate Scrutiny PDF

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Intermediate Scrutiny: Sex and Illegitimacy -

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gender is a quasi-suspect class o intermediate scrutiny applies once intentional discrimination is shown o government must show an exceedingly persuasive justification which. Must be genuine, not hypothesized or invented post hoc in response to litigation.  It must not rely on overbroad generalizations about the different talents, capacities, or preferences of male or females – US v Virginia o But a gov may, where appropriate, account for real differences btwn men and women While sex classifications have been used to stereotype and marginalized women, facts that argue for heightened scrutiny, the court also thinks that sex, far more often than race, may be relevant to legitimate gov objectives Sex classifications invited only min scrutiny and were uniformly upheld until Reed v Reed o Idaho law stipulated that men should be preferred to women as court appointed administrators of an intestate decedent’s estate o Only did min scrutiny but invalidated it as irrational – gender doesn’t bear rational relationship to ability to be administrator of estate Argument over the level of scrutiny broken into the open in Frontiero v Richardson o Fed law permitted a male member of the armed services automatically to claim his wife as a dependent and thus acquire increased housing and med benefits but it did not permit a female fact to do so unless she could demonstrate her husband was in fact dependent on her for over half of his support o Struck it down as a violation of equal protection o Brennan relied on a long and unfortunate history of sex discrimination and the fact that sex, like race and national origin, is an immutable characteristic that frequently bears no relationship to ability to perform or contribute to society Weinberg v Wiesenfeld o Court voided social security act provision that entitled widow but not widowed to benefits based on the earnings of the decease spouse o The overbroad premise was that male workers earning are vital to support of their families, while the earnings of the females do not significantly contribute to their families support Stanton v Stanton o State required parental support of male offspring until 21 but females only until 18 o Court said there was nothing rational in the underlying premise that the female is destined only for the home and male for the marketplace and world of ideas Kahn v Shevin o Court upheld a property tax exemption for widows but not widowers on the ground that the distinction was rationally related to the greater financial problems of widows Shlesinger v Ballad o Court upheld a navy promotion rule that required male officers to be promoted or discharges within a shorter period than that imposed on women officers on the ground that fewer opportunities were avail to women to display their merit Geduldig v Aiello o Court rules that CA’s exclusion of pregnancy from disability insurance coverage was not a sex classification – it merely removed one physical condition – pregnancy- from the list of compensable disabilities

Craig v Boren Facts Issue Rule

OK prohibits sale of 3.2% beer to men under 21 and females under the age of 18 Whether such a gender based differential constitutes a denial to males 18-20 of equal protection To withstand a constitutional challenge, previous cases est classifications by gender must serve important gov objectives and be substantially related to achievement of those objectives Reed: objectives of reducing the workload on probate courts and avoiding intrafamily controversy were deemed of insufficient importance to sustain use of an over gender criterion in the appointment of administrators of intestate decedent estates Decisions after Reed reject admin ease and convenience as sufficiently important objectives to justify gender-based classifications Archaic and overbroad generalizations concerning the financial position of service women and working women could not justify a use of gender line in determining eligibility for certain gov entitlements Outdated misconceptions concerning the role of females in the home rather than in the marketplace and

Decision Reasonin g

Concur (Powel)

Concur (stevens)

Dissent (Rehnquis t)

world of ideas were rejected as loose fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy There is no difference btwn males and females w respect to beer that warrants the differential treatment in age. The objective underlying the classification is enhancement of traffic safety The protection of public health and safety is an important function of state and local govs But statistics here don’t support the conclusion that the gender based distinction closely serves to achieve that objective and therefore the distinction can’t withstand equal protection challenge Statistics Showed 18-20 year old male arrests for DUIs and drunkenness substantially exceeded female arrests for the same ae period Those 17-21 were found to be overrepresented among those killed or injured in traffic accidents (w more males than females) Men are more likely to drink and drive than women But really this is only 2% of all arrests which is a lot, but not enough The appellees do not satisfy a showing that sex represents a legit, accurate proxy for the regulation of drinking and driving Prohibits selling only 3.2% beer for a specific age range – not their drinking after the beverage is acquired No one Q’s the legitimacy or importance of the asserted gov objective – the promotion of highway safety Decision turns on whether the classification bears a fair and substantial relation tot his objective Not persuaded by these facts and the inferences fairly drawn from them justify this classification esp since it is so easily circumvented as to be virtually meaningless This gender based classification does not bear a fair and substantial relation to the object of the legislation The classification is objectionable bc it is based on an accident of birth The Q is then whether the traffic safety justification put forward by the state is sufficient to make an otherwise offensive classification acceptable The classification is not totally irrational Evidence does indicate there are more men then women in this age bracket who drive and also more who drink BUT it is still difficult to believe the statute was actually intended to cope w traffic safety since it has only a min effect on access to not a v intoxicating drink and does not prohibit its consumption Imposes a 100% restraint bc 2% of them have probably violated one or more laws relating to the consumption of alc beverages Unlikely the law will have a deterrent effect on anyone It does not seem to me that the insult to all the young men in the state can be justified by bad actions of the 2% This case is objectionable on two grounds Its conclusion that men challenging a gender based statute which treats them less favourable than women may invoke a more stringent standard of judicial review than pertains to most other types of classifications The courts enunciation of the standard, without citation to any source, as being that classifications by gender must serve important gov objectives and must be substantially related to achievement of those objectives o The only redeeming ft of op is that it signals a retreat from the view that sex is a suspect classification for purposes of equal protection analysis Thinks it needs only the rational basis equal protection analysis The equal protection clause contains no language that says a law which treats men less favourably than women must serve important gov objectives and be substantially related to achievement of those objectives The OK legislature could reasonably infer that the incidence of drunk driving is a good deal higher than the incident of arrest The legislature is not required to prove before a court that its’ statistics are perfect The rationality of a statutory classification for equal protection purposes does not depend upon the statistic fit btwn the class and the trait sought to be singled out It turns on whether there may be a sufficiently higher incidence of the trait within the included class than in the excluded class to justify differential treatment The present equal protection challenge poses only the Q of whether the incident of drunk driving among young men is sufficiently greater than women to justify differential treatment o The evidence suggests clear differences btwn drinking and driving habits btwn genders o The differences are grounds enough for the state to reasonably conclude that young males are more of a risk in terms of numbers and hazards o The gender based diff is not irrational A P in a constitutional sex discrimination suit must prove that the sex classification is intentional

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Disparate impact by itself is not sufficient Proof of legislative awareness of a differential impact by sex is not enough to prove discriminatory intent – the challenger must prove that the facially neutral law was adopted bc of its sexually discriminatory impact In assessing whether a state’s purpose is sufficiently important to withstand intermediate scrutiny, courts insist upon determining the actual purpose of the classification Mississippi Uni for Women v Hogan o Although the state recited a benign, compensatory purpose, it failed to est that the alleged objective is the actual purpose underlying the discriminatory classification The court frequently asserts that policies that perpetuate stereotypes views of sex roles that rely on archaic generalizations amount men and women are inadequate o But have also found sex classifications not to be invidious when they reflect real differences btwn the sexes

Micheal M v Superior Court of Conoma County Facts Issue Rule

Decision Reasonin g

Concur (Stewart) Dissent (brennan)

CA defines unlawful sex as an act of sex accomplished w a female not the wife of the perp, where the female is under 18. Makes men alone criminally liable for the act of sex. Whether CA’s statutory rape law violates equal protection Equal protection does not demand that a statute necessarily apply equally to all persons or require things which are different in fact to be treated in law as though they were the same SCOTUS has consistently upheld statutes where the gender classification is not invidious, but rather realistic reflects the fact that the sexes are not similarly situated in certain circumstances A state can attack the problem of sex intercourse and teenage pregnancy directly by prohibiting a male from having sex w a minor female – sufficiently related to the state’s objectives to pass constitutional muster. affirmed CA legislature sought to prevent illegitimate teenage pregnancies The state has a strong interest in preventing such pregnancies Teen pregnancies have a sig social, med, and econ consequences for mom, kid, and state Over half teenage pregnancies end in abortion Illegitimate kids are likely to be wards of the state Men and women are not similarly situated when it comes to risks of sex intercourse Only women can become pregnant They suffer disproportionately the profound physical, emotional, and psych consequences of sex Statute here protects women from sex at an age when those consequences are particularly severe Bc all sig harmful and inescapably ID consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct The risk of pregnancy is a substantial deterrence to young women No other natural sanctions deter men A criminal sanction impose solely on males thus serves to roughly equalize the deterrents on the sexes Can’t say that a gender-neutral statute would be as effective as this one The state persuasively contends that a female is less likely to report violations of the statute if she herself would be subject to prosecution would serve that goal equally well The statute reasonably reflects the fact that the consequences of sex intercourse and pregnancy fall more heavily on the female than the male Equal protection does not mean that the physiological differences btwn men and women must be disregarded While those differences must never be permitted to become a pretext for invidious discrimination, the constitution surely does not require a state to pretend that demonstrable differences btwn men and women do not really exist CA has the burden to prove that there are fewer teenage pregnancies under its gender based statutory rape law than there would be if the law were gender neutral To do this the state must show that bc its statutory rape law punishes only males and not females, it more effectively deters minor females from having sex intercourse There are now 37 states which have enacted gender neutral statutory rape laws CA has introduced no evidence that those states have been handicapped by the enforcement problems State has still not shown that enforcement problems would make a statute less effective than a gender based statute in deterring minor females from engaging in sex Common sense suggests a gender neutral rape law is potentially a greater deterrent of sex than a gender based law for the simple reason that a gender neutral law subjects both men and women so it has effect on twice the amount of people The state has not shown its law is any more effective than a gender neutral law would be in deterring minor females from engage in sex It has therefore not met its burden of proving that the statutory classification is substantially related to the

Dissent (stevens)

achievement of its asserted goal Plurality is correct in assuming the join act this law seeks to prohibits creates a greater risk of harm for the female than for the male But what about STDs? Those are a risk to all Even if there actually is some speculative basis for treating equally guilty males and females differently, any such speculative justification would be outweighed by the paramount interest in even-handed enforcement of the law A rule that authorizes punishment of only one of two equally guilty wrongdoers violates the essence of the constitutional requirement that the sovereign must gov impartially

Rostker v Goldberg Facts Issue Rule

Decision Reasonin g

Dissent (Marshall)

Whether the military selective service act violates equal protection in authorizing the president to require the registration of males not female Congress is not free to disregard the constitution when it acts in the area of military affairs The constitution itself requires such deference to congressional choice SCOTUS must be particularly careful not to substitute their judgment of what is desirable for that of congress or our own evaluation of evidence for a reasonable eval by the legislative branch The governments interest in raising and supporting armies is an important gov interest Reversed In light of legislative history, It is apparent that congress was fully aware of the current thinking as to the place of women in the armed services Congress did not act unthinkingly or reflexively and not for any considered reason The decision to exempt women from registration was not the accidental by-product of a traditional way of thinking about females o Congress determined that any future draft which would be facilitated by the registration scheme would be characterized by a need for combat troops o But women as a group are statutorily not eligible for combat o Since women are excluded from combat, congress concluded they would not be needed in the event of a draft and decided not to register them Men and women are not similarly situated for purposes of a draft or registration for a draft Exemption of women from registration is not only sufficiently but closely related to congress’s purpose in authorizing registration Assuming that a small number of women could be drafted for noncombat rules, congress simply did not consider it worth the added burdens of including women in the draft The relevant inquiry is whether the gender based classification is substantially related to the achievement of the asserted gov interest Thus the gov’s task in this case is to demonstrate that excluding women from registration substantially furthers the goal of preparing for a draft of combat troops Gov must show that registering women would substantially impede its efforts to prepare for such a draft Gov can’t meet this burden without showing a gender neutral statute would be less effective means of attaining this end o There were a ton of other ways they could achieve this goal o They don’t exclude men who are ineligible for combat The court’s analysis rests on a premise that is demonstrably false Majority simply assumes that registration prepares for a draft which every draftee must be avail for assignment There are a ton of support positions that women could fulfill The combat restrictions can’t by themselves supply the constitutionally required justification for the gender based classification J.E.B. Alabama ex Rel The court rules that peremptory challenges of jurors on the basis of their sex was unconstitutional o Natural cont of Batson v Kentucky Alabama offered virtually no support for the conclusion that gender alone is an accurate predictor of jurors attitudes Dissent: Rehnquist o It is not merely stereotyping to say that sex differences may produce a difference in outlook which is brought into the jury room Dissent: Scalia

o o

To say that men were singled out for discriminatory treatment is preposterous This was not a systemic sex based animus but each sides desire to get a jury favourably disposed to its case  Weren’t struck bc they were incompetent

United States v Virginia Facts

Issue

Rule

Decision Reasonin g

VA’s public institutions of higher learning included an incomparable military college, VA Military Institute (VMI). Is the sole single sex school among VA’s 15 public institutions of higher learning. Distinctive mission is to produce citizen soldiers through pervasive training not found anywhere else in VA. Instills physical and menta discipline in its cadets and imparts to them a strong moral code. Graduates leave w a capacity to deal w stress and duress, and a large sense of accomplishment for completing the hazardous course Whether VMI’s exclusively male admission policy violated equal protection Does VA’s exclusion of women from the edu opportunities provided by VMI deny to women capable of all of the ind activities required of VMI cadets equal protection? If VMI’s unique situation – as VA’s sole single sex public. Institution of higher edu – offends the constitution, what is the remedial requirement? Parties who seek to defend gender based gov action must demonstrate an exceedingly persuasive justification for that action The burden of justification is demanding and it rests entirely on the state State must show at least that the challenged classification serves important gov objectives and that the discriminatory means employed are substantially related to the achievement of those objectives Justification must be genuine, not hypothesized, or invented post hoc in response to litigation It must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females A tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded Supposed inherent differences are no longer an accepted as a ground for race or national origin classifications Physical differences are enduring – inherent differences btwn men and women remain cause for celebration, but. Not for denigration of the members of either sex or for artificial constraints on an inds opportunity Sex classifications may be used to compensate women for particular econ disabilities they have suffered to promote equal employment opportunity, and to advance full development of the talent and capaci...