sex

Slide1: 

Sex Discrimination

Precursors: 

Precursors Second-class citizens Women often could not enter into contracts, hold property, control their earnings, or sue e.g., Calder et ux. v. Bull et ux. (1798) Disenfranchised Neither 14th nor 15th amd gave the franchise Susan B. Anthony arrested in 1872 for trying to vote

Sufferage: 

Sufferage 19th Amendment (1920)

Precursors: 

Precursors Early cases Bradwell v. State of Illinois (1872) Practicing law not a 14th amd. P/I Women unfit for the practice of law "The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." Goesaert v. Cleary (1948) upholding law restricting women bartenders Paternalism Muller v. OR (1908) [upholding min wage for women Hoyt v. FL (1961) [jury exemption for women]

Reed v. Reed (1971): 

Reed v. Reed (1971) Facts: Administrator vs adminstratrix Standard of Review: Rational Basis ? Non-Deferential Rational Basis

Frontiero v. Richardson (1973): 

Frontiero v. Richardson (1973) Facts: Females in military must prove husbands are dependents; wives presumed to be dependent Burdened Class Who is discriminated against? Men or women? Rationale for classification Administrative convenience Irrational (based on stereotype)? Or empirically based? Administrative convenience not a shibboleth Not Covered Fall ‘06

Frontiero v. Richardson (1973): 

Frontiero v. Richardson (1973) Standard of Review Articulating the “Indicia of Suspectness” History of discrimination based on stereotype Structural impediments to political power Discrete and insular minority Discrete: high visibility of the characteristic Insular: no easy ingress/egress (immutable trait) Trait frequently bears no relationship to legit. ends Thus, discrimination against class is “invidious” class’n “inherently suspect”  “close judicial scrutiny” What relevance that ERA was pending? (Powell) gets only 4 votes Not Covered Fall ‘06

Craig v. Boren (1976): 

Craig v. Boren (1976) Honk-n-Holler Convenience Store, Stillwater, OK

Craig v. Boren (1976): 

Craig v. Boren (1976) Curtis Craig (on right) and his lawyers

Craig v. Boren (1976): 

Craig v. Boren (1976) Facts: To drink 3.2% beer in OK Women: 18 + Men: 21 + Drunk Driving Men (18-20): 2% arrest rate Women: .18% arrest rate 93% of all DUI arrests are men Closeness of fit Underinclusiveness = .18% Overinclusiveness = 98% 11 times as often very good very bad

Craig v. Boren (1976): 

Craig v. Boren (1976) Is 98% overinclusiveness unconstitutional? I.e., is it a good proxy for people who are likely to drink and drive? Depends on the standard of review RB: For sure SS: No way Intermediate (mid-level) ? Mid-level “classifications by gender must serve important govt’l objectives and must be substantially related to achievement of those objectives”

Craig v. Boren (1976): 

because it no longer discriminates against a (quasi-)suspect class; it is subject only to rational basis review Craig v. Boren (1976) Intermediate Scrutiny Overinclusiveness of 98% is unacceptable i.e., the TRAIT (maleness) is not a good fit (proxy) for the MISCHIEF (drunk driving) Remedying the EP violation State can allow all aged 18-20 to drink 3.2 beer State can prohibit all aged 18-20 from drinking Now the fit is even worse; only 1% of population (combined male and female) contributes to mischief Why is 99% overinclusiveness better than 98% very bad even worse

Michael M. v. Sup. Ct. (1981): 

Michael M. v. Sup. Ct. (1981) Facts: Michael M has sex w/ girlfriend, both under 18 Only men covered by statutory rape statute ENDS: health & welfare (of women) (teen pregnancy) An important interest MEANS: criminalize the conduct leading to teen preg.? criminalize one party to the conduct – men not a very good fit (vastly underinclusive)

Michael M. v. Sup. Ct. (1981): 

Michael M. v. Sup. Ct. (1981) Facts: Michael M has sex w/ girlfriend, both under 18 Only men covered by statutory rape statute ENDS: health & welfare (of women) (teen pregnancy) equalize risk and pain of teen pregnancy MEANS: criminalize the conduct leading to teen preg.? criminalize one party to the conduct – men classification is an excellent fit

Michael M. v. Sup. Ct. (1981): 

Michael M. v. Sup. Ct. (1981) ENDS: equalize risk and pain of teen pregnancy Is a state interest in punishing a class of persons ever legitimate? Can the state discriminate against a class with the sole rationale that it wants to impose a burden on that class? This should fail, not only intermediate scrutiny, but rational basis review as well Unless state demonstrates that its ENDS aren’t as well served by criminaling woman’s conduct e.g., detering reporting What standard of review actually applied?

Rostker v. Goldberg (1981): 

Rostker v. Goldberg (1981) Standard of Review Intermediate (mid-levl) scrutiny tempered by court’s deference to congress in military/national security matters Are ENDS Important? Raise & support armies including supplying combat troops Are MEANS substantially related to ends? Conscription of men, not women Is this invidious, based on bias or stereotype? Or because women are not eligible for combat? Not Covered Fall ‘06

Rostker v. Goldberg (1981): 

Rostker v. Goldberg (1981) Relatedness of MEANS to ENDS So how can there be any EP problems? Army consists of more than just combat troops in which case, exclusion of women from draft unnecessary Exclusion of women from combat itself violates EP Male bonding a compelling interest? White male bonding? Register/draft only men male-only troops perfect fit the restriction on combat troops is statutory, and endorsed by Congress therefore, men & women are not similarly situated why does even the dissent avoid this? Not Covered Fall ‘06

Rostker v. Goldberg (1981): 

Rostker v. Goldberg (1981) Relatedness of MEANS to ENDS A principal object of equal protection is to equalize burdens Spreading the burden makes the political process a more effective means for correcting gov’t abuse Register/draft only men minimize opposition to draft & war good fit Would drafting women subject war & war planning to greater public scrutiny? Not Covered Fall ‘06

US v. Virginia (1996): 

US v. Virginia (1996) Facts: All-male VMI ENDS: prepare citizen soldiers (Nat’l Guard) MEANS: rigorous training (“adversative method”) since it is unsuitable to women, they are excluded SCRUTINY: is exclusion of women “substantially related” to important gov’t interest? an “exceedingly persuasive justification” ?

US v. Virginia (1996): 

US v. Virginia (1996) Is sex never a legitimate criterion? real biological differences unlike race, national origin Thus, sex can be a legitimate discriminator Because “sometimes” relevent (unlike race) Intermediate scrutiny Single-sex education Diversity in educ experieces but is this the “actual” purpose, or some post-hoc rationalization NB: one consequence of heightened scrutiny is examination of actual ENDS

US v. Virginia (1996): 

US v. Virginia (1996) ENDS: Benefits of adversative training would be lost in co-ed environment the “rat system” Aren’t there similar benefits to segregation in educational setting? Why isn’t this benefit equally as important as ethnic diversity) via affirmative action)? Inclusion vs Exclusion?

US v. Virginia (1996): 

US v. Virginia (1996) REMEDY: Separate but equal at Equal? student body faculty curriculum (military orientation)? Alumni connections? Scalia (dissent) gender-based development differences can be recognized by a classification scheme decries radical egalitarianism

US v. Virginia (1996): 

US v. Virginia (1996)

Nguyen v. INS (2001): 

Nguyen v. INS (2001) Facts: Non-marital child born outside US a citizen if mother (only) a citizen, but not if father (only) unless legitimated prior to reaching 18 ENDS (must be important) Assuring biological relationship exists Assuring parental bonding occurs MEANS (classification must be substantially related) Mothers and fathers not similarly situated Note: least discriminatory means not required Parental bonding not the same Classification based on sex of citizen parent to assure allegiance to US