Applying Intermediate Scrutiny: the Line Between Redressing Inequality

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Applying Intermediate Scrutiny the Line Between
Redressing Inequality

• Kahn v. Shevin (1974) upholding state statute
  allowing widows but not widowers a property tax
  exemption to compensate for the more difficult
  barriers facing women in the job market.
• Schlesinger v. Ballard (1975) upholding Navy
  policy granting female officers a longer time to
  achieve promotion as an acceptable allowance for
  restrictions on womens service opportunities.
• Califano v. Webster (1977) SSA provision
  allowing women to exclude more low-earning years
  than men was justified by the important
  government objective of redressing our
  societys longstanding disparate treatment of
  women.

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and Reinforcing Harmful Stereotypes

• Stanton v. Stanton (1975) striking down law
  setting age of majority for males at 21 and
  females at 18
• Weinberger v. Wiesenfeld (1975) striking down
  SSA provision granting benefits to surviving
  widows (but not widowers) based on earnings of
  deceased spouse.
• Califano v. Goldfarb (1977) federal law paying
  automatic benefits to widows but requiring
  widowers to prove reliance on deceased wife for
  at least half of support violated equal
  protection
• Orr v. Orr (1979) striking down state law
  authorizing husbands but not wives to pay alimony
• Kirchberg. V. Feenstra (1981) striking down law
  giving husband right to dispose of joint property
  without wifes consent (requiring an exceedingly
  persuasive justification)

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A Test Case MUW v. Hogan (1982)

• Tweaking the standard
• Reiterating the need for the government to show
  an exceedingly persuasive justification
• Requiring a showing at least that the
  classification serves important governmental
  objectives and that the discriminatory means
  employed are substantially related to the
  achievement of those objectives
• The Majority finds MUWs exclusion of men
  unjustified the exclusion of males from the
  nursing school tends to perpetuate the
  stereotyped view of nursing as an exclusively
  womans job
• The Dissenters lament the threat to single-sex
  schooling, and question the wisdom of the
  majoritys high level of scrutiny

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The Trend toward Equal Treatment J.E.B. v.
T.B. (1994)

• Georgias sex-based use of peremptory challenges
  to strike males from jury in a paternity case
  violated equal protection
• Majority focuses on sex-based treatment of
  individuals, even though both sides considered
  sex of jurors in exercising peremptory strikes
• States use of stereotypes/generalizations
  violates equal protection, even if theres a
  measure of truth to them (rejection of different
  voice rationale for permitting sex-based
  treatment)

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United States v. Virginia (1996)

• Why did Virginias stated purposes fail?
• What level of scrutiny is this - strict?
  Intermediate? Something else?

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What Implications for Single-Sex Schools?

• Do they advance full development of the talents
  and capacities of our Nations people?, or
  create or perpetuate the legal, social, and
  economic inferiority of women? (p.344)
• Would diversity justify equal single-sex
  schools? Even ones that do not dissipate, rather
  than perpetuate, traditional gender
  classifications? (p.344, fn.7) (an omitted
  footnote analogizes the pluralistic argument
  for all-male education to that for all-white
  education)
• Can single-sex schools ever be fully equal under
  Sweatt v. Painter?

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What must VMI do after U.S. v. Virginia?

• Admit women, with no modifications?
• Modify privacy, living arrangement, but nothing
  else?
• Modify physical requirements? The adversative
  method?

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What to do with Real Differences?

• Michael M. v. Superior Court (1981) upholding CA
  statutory rape law that makes it a crime for men
  (of any age) to have intercourse with a female
  under the age of 18 the Court accepts the
  states asserted justification of reducing teen
  pregnancy, and invokes the real difference of
  pregnancy
• Parham v. Hughes (1979) upholding law treating
  unwed mothers differently from unwed fathers in
  their ability to sue for wrongful death, because
  mothers and fathers are not similarly situated
  with respect to parenthood.
• Rostker v. Goldberg (1981) upholding requirement
  in federal law that only males register for the
  draft men and women are not similarly situated
  with respect to combat eligibility.

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A Retreat from VMIs Equal Treatment? Nguyen
v. I.N.S. (2001)

• 1409(a)(4) automatic citizenship on children
  born overseas to citizen mothers but children
  born overseas to citizen fathers must show
• That they were legally legitimated or paternity
  was established in court or by paternal oath
  before the childs 18th birthday
• Why doesnt this fail VMI-type scrutiny?
• Could this statute be re-written to be
  gender-neutral, and still fulfill the
  governments purposes?

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The problem of pregnancy Geduldig v. Aiello
(1974)

• Californias disability insurance scheme protects
  all disabilities except pregnancy. Why doesnt
  the Court treat this as discrimination against
  women, subject to more serious equal protection
  review?
• Why didnt the Court see an intent to
  discriminate against women here, given the
  obvious fact that only women get pregnant?

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What Kind of Intent Does the Court Require in
Feeney (1979)?

• Why doesnt a job preference for which men are
  over 98 of the beneficiaries suffice to show
  discriminatory intent against women?
• What counts as discriminatory intent?
• Enacting a policy with the knowledge that it will
  disproportionately harm women?
• Enacting a policy with selective indifference
  toward its disproportionate harm to women? (such
  that it would not be passed, if the harm fell on
  men?) Is such a question ever answerable?
• Enacting a policy with the collateral goal of
  inflicting disproportionate harm on women?