A. Creation of National Gov’t and Separation of Power 7

Gender and Intermediate Scrutiny

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Gender and Intermediate Scrutiny

Introduction
1. History
  1. Women discriminated against under separate spheres argument through common law coverture or marital status rules. Women could not make contracts binding on themselves w/o their husband’s consent.
  2. Adkins uses the 19^th amendment to invalidate a minimum wage statute binding only on women, but by end of 1920s, courts had limited 19^th amendment only to voting.
  3. Adkins was overruled in West Coast hotel, which upheld a differential wage statute for women than men.
  4. 14^th amendment equal protection heightened scrutiny not applied to gender until 1976
    1. Goesaert v. Cleary (1948) said that only a minimum rationality standard applied to MI law forbidding women from working as bartenders unless their husband or father owned the place.
      1. Court did not look to intent of legislature, but justified MI’s restriction through in terms of women’s traditional family roles – under control of men and morally appropriate behavior
    2. Hoyt v. Florida (1961) upheld law which only placed women on jury lists when they requested, saying that women are center of home and family life.
    3. We don’t have heightened constitutional scrutiny for gender until 1976 – Reed v. Reed – strikes down gender classification purporting to be based on rationality.
      1. Under rational basis test, it would have passed since the measure was reasonable insofar as it reduce workload on probate courts by eliminating one class of contestants. They also argued that the classification was reasonable since men are more likely than women to have knowledge of business affairs – women not engaged in industry, politics, etc. like men.
      2. Reed purports to only apply minimum rationality standard, but strikes down ID law requiring men to be administrator of estates when both man and woman are equally qualified.
      3. In the same period the ERA is being promoted, but it wasn’t ratified – the book says that the reason for its failure was Roe v. Wade – anti-abortionists realized that if there really was equal protection then abortion would be guaranteed.
2. Questions
  1. To what extent is gender like race or not like race? Does it justify the differences in treatment?
  2. How likely is gender classification likely to get it right? Are the only legitimate distinctions the ones that are biologically based?
  3. What does under-representation mean? Are women the only people who can represent women? Is the court making a shift saying that official measures of
3. Methods of enforcing social hierarchy for women
  1. Segregation, but limited to facilities like education
  2. Role differentiation – through expectations about family life and paternalism/pseudo-chivalry
  3. Biology – to what extent invocation of biological differences is appropriate and to what extent it disguises or misrepresents social structures that subordinate women to men – have to look past traits considered in isolation, and towards the social structures, institutions, sets of social meanings behind them...
4. Is sexism deeper than racism?
  1. Harder to detect and eradicate
  2. Less unequivocally regarded as unjust and unjustifiable
  3. Sexism should be though to take sex into account in a certain way, in the context of a specific set of institutional arrangements and a specific ideology which together create and maintain a system of unjust institutions and unwarranted beliefs and attitudes.
  4. Social memory of gender relations creates image of a quiet passive consensual shift rather than one of conflict – outside of the public realm in private lives – this view of gender politics insulates the gender order from political contestation
  5. MacKinnon
    1. Gender is a system of social hierarchy and inequality – the discourse that centers on gender serves to cover disparities of power.
    2. Difference is the velvet glove on the iron fist of determination – the problem is not that differences are not valued, the problem is that they are defined by power.
    3. If differences were the problem, gender neutrality would make sense as an approach. Since hierarchy is the problem, it is inadequate to say that you can be gender-blind when trying to rectify it.
    4. The sexuality of one sex is a social stigma, a target, and provocation to violation, the sexuality of the other is socially a source of pleasure, adventure, power (potency), and a focus for deification, entertainment, nurturance, repression – the sexuality of each is different, but not equally socially powerful.
5. Ely - Women, since they are not minorities, have “chosen” to accept overdrawn stereotype and thus have nothing to “correct”. If there are laws enacted against them in the future, it will be b/c women have chosen not to protect themselves.
  1. Isn’t this true just if women were majority of legislators rather than voters?
  2. If the 19^th amendment is predicated on idea that men cannot adequately represent women as voters, why are men better able to represent them as legislators?
Frontiero v. Richardson (1973) p. 989; establishes heightened standard of review for sex classifications; outlines reasons for heightened standard
1. Facts
  1. Congress established scheme to attract career personnel through reenlistment by giving dependents comprehensive medical and dental care and increased basic allowance for quarters.
  2. Serviceman may claim wife as dependent w/o regard to whether she actually is dependent, but servicewoman may not claim her husband as a dependent unless he is actually dependent on her.
2. Rational basis test
  1. Under rational basis test, this would have passed since differential treatment would have lead to considerable savings of administrative expense and manpower (ends) since husbands traditionally aren’t dependent, while wives are (classification).
3. Reasons for intermediate scrutiny for sex classifications
  1. History of sex discrimination through romantic paternalism notions.
  2. Women still face pervasive sex discrimination.
  3. Sex is an immutable characteristic; imposition of special burdens on particular sex violates basic concept of our system that legal burdens should bear some relationship to individual responsibility.
  4. Sex frequently bears no relation to ability to perform or contribute differentiates it from non-suspect classifications
  5. Congress has legislated in a sex-sensitive way: Title VII of Civil Rights Act, ERA, etc.
4. Says that sex is strict scrutiny???
  1. No evidence to show that cost of evaluating dependency status of wives would be more expensive that granting dependency status to all husbands.
  2. Evidence was gathered through affidavits rather than through more thorough hearings process.
  3. Values of equal protection trump administrative ease and efficiency
  4. Represents arbitrary legislative choice forbidden by 14^th amendment b/c it is dissimilar treatment for similarly situated men and women
5. Powell concurrence
  1. Not all sex classifications should be strict scrutiny
  2. Reed didn’t add sex to list of suspect classifications
Craig v. Boren (1976) – Court finally agrees to intermediate standard for gender
1. “must serve important governmental objectives and must be substantially related to achievement of those objectives.”
US v. Virginia (VMI Case) (1996) p. 1025
1. Facts
  1. Female student wanted admission to VMI and was denied. She sued Commonwealth for exclusion of women from VMI.
  2. In the two years prior, VMI had received 347 apps from women. VMI is sole single-sex school among VA’s 15 public schools.
  3. VMI’s mission is to produce “citizen-soldiers”, men prepared for leadership in civilian life and military service.
    1. Prime place is to character development – uses “adversative method” modeled on English public schools through intense and grueling hazing rituals and physical conditioning – the rat-line. A hierarchical system of privileges and responsibilities, the dyke system for assigning mentors, and a stringently enforced honor code against stealing, cheating, or lying.
    2. Only about 15% of graduates go into career military service
    3. There is very little privacy – everyone lives together in barracks and there are no blinds on the windows.
  4. Women’s admittance
    1. Could achieve at least 10% female enrollment (sufficient critical mass to provide good educational env)
    2. Some women are capable of all of activities required
    3. VMI would become better training program from perspective of armed forces, since it is mixed-gender.
  5. District Court’s ruling
    1. VMI’s unique method of instruction added diversity
    2. Single-sex status would be lost and with it some aspects of school’s distinctive training method – allowances for personal privacy and changes in physical education.
  6. Fourth Circuit reversed
    1. A policy of diversity which aims to provide an array of educational opportunities, include single-gender institutions, must do more than favor one gender
    2. Neither the goal of producing citizen soldiers nor VMI’s implementing methodology is inherently unsuitable for women
    3. Allowed school to choose three options: admit women, establish parallel institutions, or abandon state support.
  7. VMLI was created, but was fundamentally different
    1. Was at Mary Baldwin college, an all-women college.
    2. Did not employ adversarial method – used more of a cooperative method.
    3. Mary Baldwin only offered degrees in liberal arts, not engineering and sciences.
2. Intermediate scrutiny analysis
  1. Determine whether justification is exceedingly persuasive – burden rests on the state to show this. Justification must be genuine, not hypothesized or invented post hoc b/c of litigation.
  2. State must show that classification based on gender serves important gov’t objective
  3. Discrimination means employed are substantially related to the ends
  4. The means are not based on overly broad generalizations about different talents or abilities between men & women.
3. Analysis of VA’s justifications
  1. Violates equal protection requirement – justification given is discriminatory
    1. Benefits of single-sex education; furtherance of diversification of educational opportunities in state
      1. Benign justifications offered in defense of categorical exclusions will not be accepted automatically, a tenable justification must describe actual state purposes, not rationalizations.
      2. Has not shown that VMI was established to diversify, by categorical exclusion of women, educational opps in state
      3. VA’s other public universities had very long and drawn out battles for coeducation, like the University of VA. Single-sex education was traditionally used to preserve male superiority.
    2. Adversative method of training provides educational benefits that can’t be made available to women w/o changes
      1. Methodology could be used for training women w/ only minor changes
      2. Some women are capable of physical training regime
      3. Education should be designed around the rule (women do better in cooperative envs) than the exception
      4. Courts have to take a hard look at generalizations or tendencies advanced in support of disc.
      5. The question is not whether women should be forced into the method, but about whether constitutionally should have a right to be admitted to the school.
    3. Self-fulfilling prophecy of destruction of VMI through admission of women
      1. Same thing happened in coeducational change of all universities and graduate schools – they all said the same thing.
      2. Women have successfully entered federal military schools and have not significantly changed the character of the schools
    4. Mission of creating citizen-soldiers would be undermined
      1. Goal would not be substantially advanced by continuing to exclude women in total disregard of individual merit
  2. Has to show that remedial proposal is directly addressed and related to violation
    1. VWIL is not a military institute, no adversarial system, don’t live together or in barracks, doesn’t foster egalitarian ethic.
    2. VMI said that the “most important part of the experience occurred in the barracks”, yet they didn’t reproduce that at VWIL.
    3. Generalizations about the way women are (more cooperative) no longer justify denying opportunities to women whose talent and capacity place them outside the average description.
    4. Resources allocated are totally different. – no equality of opportunities.
Tuan Anh Nguyen v. INS (2001) Supp 199
1. Facts
  1. Federal statute automatically grants American citizenship to child born out of wedlock in foreign country if born to an American mother, but denies citizenship if father was only American parent unless paternity decree is entered before the child turns 18.
  2. Nguyen was born in Vietnam to American father and lived with father after age six and became permanent resident.
  3. Nguyen was convicted of sexual assault on a minor and INS was going to deport him, so father established paternity and petitioned for him to stay.
2. Analysis
  1. Importance of assuring that biological parent-child relationship exists.
    1. Classification on gender is based on significant different in respective relationship to potential citizen at time of birth.
    2. Relationship is verifiable from birth itself – fathers and mothers are not similarly situated wrt proof of biological parenthood. Mother’s relationship is proved through birth itself – so same affirmative steps not necessary.
    3. Law provides three ways for father to establish paternity: legitimation, paternity oath, court order – designed to ensure acceptable documentation of paternity.
    4. Although DNA testing is readily available, Constitution does not mandate that Congress elect one particular mechanism among many possible methods of establishing paternity, even if other mechanism is better method.
  2. Whether means fit ends
    1. Use of gender terms takes into account of biological difference in parents and dissimilar situations
  3. Ensure potential for developing relationship
    1. Mother automatically has opportunity in birth itself
    2. Not always certain that father will know of child or that mother will know father’s identity
    3. Have to ensure that there is some opportunity of a relationship – provide occasion for initial point of contact
    4. Scientific proof through DNA testing does nothing by itself to ensure contact between father and child
  4. Whether means fit end
    1. Required it to happen before 18 – chance to start relationship while child is a minor
    2. Easily administered scheme to promote different but still substantial interest of ensuring at least an opportunity for a parent-child relationship to develop
    3. All it has to do is demonstrate that means are substantially related to ends, not that it will achieve ends in every case
3. Dissent
  1. Requirements
    1. With heightened scrutiny, burden should be on the state
    2. Justification must be exceedingly persuasive
    3. Justification must be genuine, not invented for litigation.
    4. Overbroad sex-based generalizations are impermissible even when enjoying empirical support
    5. Means/End fit must be substantially related  most important difference between heightened and rational scrutiny
  2. Analysis
    1. Biological parent-child relationship
      1. INS doesn’t rely on this interest in their brief
      2. 1409(c) imposes no burden of proof on mothers, so in terms of means/ends fit (ensuring relationship exists so illegals don’t sneak in) this is a major hole.
      3. Why does limit on amount of time (18 years) do towards proving biological relationship? DNA testing negates this...
      4. Mother’s relationship to child may be immediately verifiable to those at the birth, but not to the INS, who wasn’t there
      5. Less discriminatory means available to accomplish same ends – require DNA testing from everyone.
        
        Existence of comparable or superior sex-neutral alternatives in prior cases has been powerful reason to reject sex-based classification
    2. Ensure relationship
      1. Far too attenuated for provision to be upheld
      2. Court focuses on opportunity rather than reality – where there is an actual relationship, it does all of the work in rendering appropriate a grant of citizenship
      3. Can’t a relationship develop after the child is over 18 years of age?
      4. Child could also obtain adjudication of paternity absent any affirmative act by the father, or even against his wishes
      5. Sex neutral alternatives would replicate and possibly exceed whatever fit there is between existing means/ends
        
        Could require some degree of regular contact; although more difficult to monitor, administrative convenience has been rejected as a justification for sex-based classification (Frontiero)
      6. Is based on stereotype, not physical difference – that mothers are more caring and forge stronger bonds w/ kids
        
        Craig v. Boren – general classifications that rest on stereotypes violate Equal Protection even when empirical data
        
        Stereotypes are not defined to only be insulting, but rather whether they rest on simplistic, outdated assumption that gender could be used as a proxy for other, more germane bases of classification (MS Univ Women v. Hogan)
        
        Decision reflects stereotype about male irresponsibility more than anything...
      7. Physical differences don’t justify classification – mothers may be torn apart from children after birth just as easily as fathers

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A. Creation of National Gov’t and Separation of Power 7

Gender and Intermediate Scrutiny

Gender and Intermediate Scrutiny

Introduction

History

Women discriminated against under separate spheres argument through common law coverture or marital status rules. Women could not make contracts binding on themselves w/o their husband’s consent.

Adkins uses the 19th amendment to invalidate a minimum wage statute binding only on women, but by end of 1920s, courts had limited 19th amendment only to voting.

Adkins was overruled in West Coast hotel, which upheld a differential wage statute for women than men.

14th amendment equal protection heightened scrutiny not applied to gender until 1976

Goesaert v. Cleary (1948) said that only a minimum rationality standard applied to MI law forbidding women from working as bartenders unless their husband or father owned the place.

Hoyt v. Florida (1961) upheld law which only placed women on jury lists when they requested, saying that women are center of home and family life.

We don’t have heightened constitutional scrutiny for gender until 1976 – Reed v. Reed – strikes down gender classification purporting to be based on rationality.

Questions

To what extent is gender like race or not like race? Does it justify the differences in treatment?

How likely is gender classification likely to get it right? Are the only legitimate distinctions the ones that are biologically based?

What does under-representation mean? Are women the only people who can represent women? Is the court making a shift saying that official measures of

Methods of enforcing social hierarchy for women

Segregation, but limited to facilities like education

Role differentiation – through expectations about family life and paternalism/pseudo-chivalry

Is sexism deeper than racism?

Harder to detect and eradicate

Less unequivocally regarded as unjust and unjustifiable

Sexism should be though to take sex into account in a certain way, in the context of a specific set of institutional arrangements and a specific ideology which together create and maintain a system of unjust institutions and unwarranted beliefs and attitudes.

Social memory of gender relations creates image of a quiet passive consensual shift rather than one of conflict – outside of the public realm in private lives – this view of gender politics insulates the gender order from political contestation

MacKinnon

Gender is a system of social hierarchy and inequality – the discourse that centers on gender serves to cover disparities of power.

Difference is the velvet glove on the iron fist of determination – the problem is not that differences are not valued, the problem is that they are defined by power.

If differences were the problem, gender neutrality would make sense as an approach. Since hierarchy is the problem, it is inadequate to say that you can be gender-blind when trying to rectify it.

Ely - Women, since they are not minorities, have “chosen” to accept overdrawn stereotype and thus have nothing to “correct”. If there are laws enacted against them in the future, it will be b/c women have chosen not to protect themselves.

Isn’t this true just if women were majority of legislators rather than voters?

If the 19th amendment is predicated on idea that men cannot adequately represent women as voters, why are men better able to represent them as legislators?

Frontiero v. Richardson (1973) p. 989; establishes heightened standard of review for sex classifications; outlines reasons for heightened standard

Facts

Congress established scheme to attract career personnel through reenlistment by giving dependents comprehensive medical and dental care and increased basic allowance for quarters.

Serviceman may claim wife as dependent w/o regard to whether she actually is dependent, but servicewoman may not claim her husband as a dependent unless he is actually dependent on her.

Rational basis test

Under rational basis test, this would have passed since differential treatment would have lead to considerable savings of administrative expense and manpower (ends) since husbands traditionally aren’t dependent, while wives are (classification).

Reasons for intermediate scrutiny for sex classifications

History of sex discrimination through romantic paternalism notions.

Women still face pervasive sex discrimination.

Sex is an immutable characteristic; imposition of special burdens on particular sex violates basic concept of our system that legal burdens should bear some relationship to individual responsibility.

Sex frequently bears no relation to ability to perform or contribute differentiates it from non-suspect classifications

Congress has legislated in a sex-sensitive way: Title VII of Civil Rights Act, ERA, etc.

Says that sex is strict scrutiny???

No evidence to show that cost of evaluating dependency status of wives would be more expensive that granting dependency status to all husbands.

Evidence was gathered through affidavits rather than through more thorough hearings process.

Values of equal protection trump administrative ease and efficiency

Represents arbitrary legislative choice forbidden by 14th amendment b/c it is dissimilar treatment for similarly situated men and women

Powell concurrence

Not all sex classifications should be strict scrutiny

Reed didn’t add sex to list of suspect classifications

Craig v. Boren (1976) – Court finally agrees to intermediate standard for gender

“must serve important governmental objectives and must be substantially related to achievement of those objectives.”

US v. Virginia (VMI Case) (1996) p. 1025

Facts

Female student wanted admission to VMI and was denied. She sued Commonwealth for exclusion of women from VMI.

In the two years prior, VMI had received 347 apps from women. VMI is sole single-sex school among VA’s 15 public schools.

VMI’s mission is to produce “citizen-soldiers”, men prepared for leadership in civilian life and military service.

Only about 15% of graduates go into career military service

There is very little privacy – everyone lives together in barracks and there are no blinds on the windows.

Women’s admittance

Could achieve at least 10% female enrollment (sufficient critical mass to provide good educational env)

Some women are capable of all of activities required

VMI would become better training program from perspective of armed forces, since it is mixed-gender.

District Court’s ruling

VMI’s unique method of instruction added diversity

Single-sex status would be lost and with it some aspects of school’s distinctive training method – allowances for personal privacy and changes in physical education.

Fourth Circuit reversed

A policy of diversity which aims to provide an array of educational opportunities, include single-gender institutions, must do more than favor one gender

Neither the goal of producing citizen soldiers nor VMI’s implementing methodology is inherently unsuitable for women

Allowed school to choose three options: admit women, establish parallel institutions, or abandon state support.

VMLI was created, but was fundamentally different

Was at Mary Baldwin college, an all-women college.

Did not employ adversarial method – used more of a cooperative method.

Mary Baldwin only offered degrees in liberal arts, not engineering and sciences.

Intermediate scrutiny analysis

Determine whether justification is exceedingly persuasive – burden rests on the state to show this. Justification must be genuine, not hypothesized or invented post hoc b/c of litigation.

State must show that classification based on gender serves important gov’t objective

Discrimination means employed are substantially related to the ends

The means are not based on overly broad generalizations about different talents or abilities between men & women.

Adkins uses the 19^th amendment to invalidate a minimum wage statute binding only on women, but by end of 1920s, courts had limited 19^th amendment only to voting.

14^th amendment equal protection heightened scrutiny not applied to gender until 1976

If the 19^th amendment is predicated on idea that men cannot adequately represent women as voters, why are men better able to represent them as legislators?

Represents arbitrary legislative choice forbidden by 14^th amendment b/c it is dissimilar treatment for similarly situated men and women