Sex Discrimination and Equal Protection
Supreme Court Cases on Gender in US Constitutional Law
In these cases, the Supreme Court considered discrimination in a variety of contexts, including differential drinking age statutes, education, and the military draft. The emerging theme is that sex discrimination can be unconstitutional under the equal protection clause, but in a much more limited set of circumstances than race discrimination.
Craig v. Boren: The First Case to Use Intermediate Scrutiny
The first step of a judicial analysis under the Equal Protection Clause of the US Constitution is to determine the level of judicial scrutiny to apply. The Supreme Court has never applied the highest level, strict scrutiny, to gender. Instead, an intermediate scrutiny standard is used.
This standard, debuted in Craig v. Boren, 429 U.S. 190 (1976), requires that a gender classification used by the government is designed to meet “important” ends and that the means employed are “substantially related” to the ends. In 1982, the Court added an additional requirement that the party defending the law carry the burden of “exceedingly persuasive justification” for the classification.
Interestingly enough, the law examined in Craig, dealing with restrictions on liquor sales to young people, disadvantaged men, not women. The Court found that the law did not meet its intermediate scrutiny standard because the means of differential drinking ages for men and women were not substantially related to the important end of traffic safety.
Hogan, the case that added the “exceedingly persuasive justification” burden, also dealt with discrimination against men – specifically, the exclusion of a man from a Mississippi nursing school. 485 U.S. 718 (1982). Justice O’Connor rejected a claim that the discrimination was “benign” and held that an end of “protecting” members of one gender is per se illegitimate. She also noted that the discrimination against men could not be justified as compensating women for past discrimination, because women in nursing had never been discriminated against.
United States v. Virginia: Women at VMI and the Future of Single-Sex Education
In United States v. Virginia, 518 U.S. 515 (1996), the Supreme Court declared Virginia Military Institute’s single-sex education policy unconstitutional. Although the Court of Appeals had given Virginia the option to establish a parallel institution for women, the Supreme Court rejected the state’s attempt in the form of the Virginia Women’s Institute for Leadership (VWIL) as insufficient.
In response to claims that women were not suited for VMI’s rigorous military training style of education, Justice Ginsburg stated that, “such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.” Though a state could legitimately create a single-sex college for the purpose of diversifying educational options, this was not Virginia’s actual purpose. The reliance on “overbroad generalizations” made the program invalid under intermediate scrutiny.
It is important to note that this case did not sound the death knell of single-sex education, as Justice Scalia implied in his dissent. Equal protection applies to public institutions and publically funded institutions only, but more importantly, the Court indicated that a public single-sex institution could survive judicial scrutiny as long as the state offers function equivalents for both sexes. VWIL, a “distinctly inferior” institution, failed this test.
Rostker v. Goldberg: Avoiding the Question of Women in Combat
One practice that did pass strict scrutiny was the authorization for the President to require selective service registration of males, but not females. In Rostker v. Goldberg, 453 U.S 57 (1981), the Court held that the practice was substantially related to the legitimate purpose of facilitating conscription. Because women are excluded by statute from combat, Justice Rehnquist found that men and women are not “similarly situated” and therefore cannot be compared for the purpose of a discrimination analysis. The Court did not, however, address whether the practice of excluding women from combat is constitutional, an omission that some scholars have criticized.
