Gender Discrimination in Law: Cases and Principles | Study notes Law

Con$Law$Outline$–$Professor$Wright$

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!(D)!Gender!Classifications!

!1.!The!Level!of!Scrutiny!

A. Intermediate!Scrutiny!Two!Step!Analysis:$

i. Is$the$classification$an$important$governmental$objective?$

Is$the$classif$

ii. ication$substantially$related$to$those$objectives?$

B. The!Emergence!of!Intermediate!Scrutiny$

i. Reed$v.$Reed$only$used$rational$basis$review$(probably$with$teeth)$

Frontiero$v.$Richardson$(p.755)'should'use'strict'scrutiny;'federal'law'allowed'a'man'to'

automatically'claim'his'wife'as'a'dependent'and'receive'a'greater'allowance'for'quarters'and'

medical'benefit;'women'had'to'prove'spouse'was'dependent'

ii. Brennan’s!Plurality:!classifications$based$on$sex,$are$inherently$suspect;$similar$

characteristics$between$racial$issues$and$gender$issues$

iii. Stewart:!would$use$the$standard$in$Reed'and'probably'r/b'review$

Craig$v.$Boren'(p.758;'754)'declared'unconstitutional'the'OK'law'that'allowed'women'to'buy'

alcohol'at'18'but'not'men'

iv. To$withstand$challenge,$the$classification$must$serve!an!important!

government!objective$and$must!be!substantially!related!to!those!objectives$

(intermediate!scrutiny)$

v. Traffic$safety$was$an$important$governmental$objective,$but$the$disparate$

treatment$wasn’t!substantially!related!to!the!objective$

vi. All$Π$needs$to$do$is$show$gender!discrimination!on!its!face$and$then$burden$

shifts$to$the$government$to$show$important$governmental$objective$

vii. Rehnquist!–!wtf$is$this$intermediate$scrutiny$thing→shouldn’t$use$it$

US$v.$Virginia$(p.761;'755)'declared'unconstitutional'the'exclusion'of'women'by'the'VMI'

viii. Even$the$creation$of$female$VMI$wasn’t$enough$because!women!were!still!

denied!the!opportunity!of!men$

ix. Court$used$the$‘exceedingly!persuasive!justification’$for$the$action;$it$isn’t$

really$intermediate$scrutiny$(something$slightly$more)$

x. The$court$discarded$the$success$of$the$institution$because$the$establishment$

was$the$choice→the$motive$for$the$creation$was$based$on$sex$stereotypes$

a. Benign$justifications$aren’t$enough;$a$‘tenable$justification’$must$describe$

actual$state$purposes$(not$rationalizations$for$actions$in$fact$differently$

grounded)$

xi. Scalia’s!Dissent:$this$is$too$high$of$a$review;$it$eliminates$the$possibility$for$

experimentation$

2.!Proving!the!Existence!of!a!Gender!Classification!

A. Two!basic!ways!to!prove!gender!classification:!

i. Gender$classification$can$exist$on$the$face$of$the$law;$

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(D) Gender Classifications

1. The Level of Scrutiny A. Intermediate Scrutiny Two Step Analysis: i. Is the classification an important governmental objective? Is the classif ii. ication substantially related to those objectives? B. The Emergence of Intermediate Scrutiny i. Reed v. Reed only used rational basis review (probably with teeth) Frontiero v. Richardson (p.755) should use strict scrutiny; federal law allowed a man to automatically claim his wife as a dependent and receive a greater allowance for quarters and medical benefit; women had to prove spouse was dependent ii. Brennan’s Plurality: classifications based on sex, are inherently suspect; similar characteristics between racial issues and gender issues iii. Stewart: would use the standard in Reed and probably r/b review Craig v. Boren (p.758; 754) declared unconstitutional the OK law that allowed women to buy alcohol at 18 but not men iv. To withstand challenge, the classification must serve an important government objective and must be substantially related to those objectives ( intermediate scrutiny ) v. Traffic safety was an important governmental objective, but the disparate treatment wasn’t substantially related to the objective vi. All Π needs to do is show gender discrimination on its face and then burden shifts to the government to show important governmental objective vii. Rehnquist – wtf is this intermediate scrutiny thing→shouldn’t use it US v. Virginia (p.761; 755) declared unconstitutional the exclusion of women by the VMI viii. Even the creation of female VMI wasn’t enough because women were still denied the opportunity of men ix. Court used the ‘ exceedingly persuasive justification ’ for the action; it isn’t really intermediate scrutiny (something slightly more) x. The court discarded the success of the institution because the establishment was the choice→the motive for the creation was based on sex stereotypes a. Benign justifications aren’t enough; a ‘tenable justification’ must describe actual state purposes (not rationalizations for actions in fact differently grounded) xi. Scalia’s Dissent: this is too high of a review; it eliminates the possibility for experimentation 2. Proving the Existence of a Gender Classification A. Two basic ways to prove gender classification: i. Gender classification can exist on the face of the law;

ii. If a law is facially gender neutral, proving a gender classification requires demonstrating that there is both a discriminatory impact to the law and a discriminatory purpose B. When is it ‘Discrimination’? Gedulding v. Aiello (p.766; 758) held that it was not a denial of equal protection for a state’s disability insurance system to exclude pregnancy-‐related disabilities, but include disabilities affecting only men i. Court used r/b test because there was no risk from which men were protected and women were not ii. Court was probably wrong (and overruled by pregrnancy discrimination act) because it was a clear sex classification (those who can get pregnant v. not)

3. Gender Classifications Benefiting Women A. Majority of SC decisions concerning gender discrimination have involved laws that benefit women and disadvantage men; three principles emerged: i. Gender classifications benefiting women based on role stereotypes generally will not be allowed ii. Gender classifications benefiting women designed to remedy past discrimination and differences in opportunity generally are permitted iii. Gender classifications benefiting women can be based on biological differences between men and women B. Gender Classifications Based on Role Stereotypes i. Court usually invalidates laws that benefit women and disadvantage men when the court perceives the law based on stereotypical assumptions of gender role Orr v. Orr (p.769; 760) court invalidated Alabama law that allowed women, not men, to receive alimony in case of divorce ii. There is a means/ends fit problem; gender-‐neutral classifications are able to be used easier (seems more strict type of intermediate scrutiny) Miss. University for Women v. Hogan (p.771;762) declared unconstitutional a state policy of operating a nursing school that excluded men iii. This wasn’t designed to remedy past discrimination (against women) but based on gender stereotypes a. Must show that the members of the gender benefited by the classification actually suffered a disadvantage related to the classification b. Miss. Has made no showing that women lacked opportunities iv. Again uses the exceedingly persuasive justification test for the classification v. Powell’s Dissent: still unsure about level of scrutiny (the heightened analysis frustrates the liberating spirit of the E/P clause) C. Court has upheld laws benefiting women even though based on stereotypes Michael M. v. Superior Court (p.774; 762) upheld CA’s statutory rape law that defined statutory rape as an act of sexual intercourse accomplished with a female not the wife of the per, where the female is under 18 years old i. Purpose: prevent teenage rape; Means: punishing men because women became pregnant and that was the equalizing factor

c. Court gives deference to legislature → essentially rational basis test d. Breyer’s Dissent: biological differences aren’t justifications for differences in treatment Chapter 8: Fundamental Rights Under Due Process and Equal Protection (A) Introduction A. The major difference between due process and equal protection as the basis for protecting fundamental rights is in how the constitutional arguments are phrased i. Using Due process – constitutional issue is whether the government’s interference is justified by a sufficient purpose a. If a law denies the right to everyone, then due process would be the best grounds for analysis ii. Using Equal protection – the issue is whether the government’s discrimination as to who can exercise the right is justified by a sufficient purpose a. If a law denies a right to some, while allowing it to others , the discrimination can be challenged as offending equal protection b. The issue will be whether the government’s discrimination as to who can exercise the right is justified by a sufficient purpose c. Test: classification will be sustained if rationally related to a legitimate state goal unless:

(1) classification impairs a fundamental right; or
(2) classification is found to be suspect iii. The difference is semantic in some cases (B) Framework for Analyzing Fundamental Rights Is There a Fundamental Right? A. If a right is deemed fundamental, the government usually will be able to prevail only if it meets strict scrutiny i. If not fundamental→usually only rational basis ii. Carolene Products – judiciary will defer to the legislature unless there is discrimination against a ‘discrete and insular’ minority or infringement of fundamental right B. Originalists – fundamental rights are limited to those liberties explicitly state in the text or clearly intended by the framers C. Court has also looked to history and tradition Is the Constitutional Right Infringed?

A. A constitutional right is infringed upon and the government’s action must be justified when the exercise of the right is prohibited B. Supreme court evaluates the directness and substantiality of the interference ( Zablocki v. Redhail ) Is There a Sufficient Justification for the Government’s Infringement of a Right? A. If a right is deemed fundamental , the government must present a compelling interest to justify an infringement (if not fundamental, only legitimate purpose) Is the Means Sufficiently Related to the Purpose? A. Under strict scrutiny , government must show the law is necessary to achieve the objective (gov’t must show couldn’t attain the goal through any means less restrictive of the right ) (C) Constitutional Protection for Family Autonomy

1. The Right to Marry A. First recognized in Loving v. Virginia →court declared unconstitutional Virginia’s antimiscegenation statute i. Freedom to marry is a ‘vital personal right’ essential to the orderly pursuit of happiness by free men (deprivation of liberty without due process of law) B. Most extended discussion of the right to marry: Zablocki v. Redhail (p.822; 799) law prevented an individual from obtaining a marriage license without court approval if the person had a minor child not in his or her custody and a court order to pay support i. Classification : unmarried men with minor issue & those without issue ii. A barrier to marriage (e.g. getting yelled at) will only get rational basis review; however, this is a direct and substantial interference iii. State had substantial interest in ensuring child support was paid a. But law was not sufficiently related to that end (violation of equal protection); and other methods existed to ensure child support iv. Steward and Powell Dissent: case should have been decided under **due process rather than equal protection

The Right to Custody of One’s Children** A. Fundamental right to custody of children →government can permanently terminate custody only if it meets the requirements of procedural and substantive D/P: i. Parents must be given notice and a hearing ; and ii. The government must prove that terminating custody is necessary to achieve a compelling goal

Troxel v. Granville (p.842; 811) rights of Grandparents to visit grandchildren i. O’Connor Plurality: the statute was too broad→anyone could petition for visitation rights at any time a. Courts should give great deference to parents when determining control of the children (D) Constitutional Protection for Reproductive Autonomy

1. The Right to Procreate A. Right to procreate is a fundamental right, therefore government-‐imposed involuntary sterilization must meet strict scrutiny Buck v. Bell (p.847; 813) sterilized Buck; court later rejected approach Skinner v. Oklahoma (p.849; 814) declared unconstitutional an act that allowed courts to order the sterilization of those convicted two+ times for crimes involving moral turpitude i. Court found law violated E/P and spoke broadly of right to procreate as a fundamental right a. Done on E/P grounds because sterilization was for a group of people ii. Stone Dissent: should do this under D/P so that legislature can’t repass 2. The Right to Purchase and Use Contraceptives A. Initial Case Griswold v. Connecticut (p.850; 815) court declared unconstitutional a state law that prohibited the use and distribution of contraceptives; prosecuted a physician who openly ran a Planned Parenthood clinic i. Court had to decide which right to protect contraception? Marital choice? ii. Court found right to privacy; fundamental right a. Rights were not protected under the liberty of the D/P clause because Douglas didn’t want to use Lochner era stuff; instead: b. Privacy was implicit in many of the specific provisions of the Bill of Rights (1st, 3rd, 4th, and 5th^ amendments)

Bill of Rights have ‘ penumbras’ that help create zones of privacy a. Penumbral approach is not generally followed because you can’t avoid substantive D/P when BofR are applied to the state through the D/P clause of the 14th^ amendment iii. Goldberg Concurrence: 9 th^ amendment should be used to protect nontextual rights such as privacy iv. Harlan Concurrence: D/P should be used to protect privacy v. White: law didn’t even meet rational basis test vi. Dissent: law was constitutional because there is not right to privacy mentioned in the constitution B. Reaffirming and Extending Griswold

Eisenstadt v. Baird (p.856; 817) declared unconstitutional a MA law prohibiting distributing contraceptives to unmarried individuals and that only allowed physicians to distribute to married people i. Court found law discriminated against non married individuals → deny E/P ii. Prohibiting distribution of contraceptives served no legitimate gov’t purpose a. The law also had a poor means/ends fit by being underinclussive iii. Court expands Griswold by recognizing a right to control reproduction as a fundamental right iv. Breyer’s Dissent: these aren’t complete bars on contraception → health risks justify the restriction

3. The Right to Abortion a. The Recognition and Reaffirmation of the Right to Abortion A. Roe Roe v. Wade (p.859; 819) held the Constitution protects a right for a woman to choose to terminate her pregnancy prior to viability (the time at which fetus can survive outside womb) i. Gov’t may not prohibit abortions prior to viability ; gov’t regulation of abortions had to meet strict scrutiny ii. Blackman’s majority: right of privacy, whether found in 14th^ amend or 9th amend, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy (strict scrutiny is the test) a. Found liberty not in penumbras, but in the D/P clause iii. Prohibition infringes women’s right to privacy: a. Force maternity may force a woman to go through distressful life/future b. Psychological harm may be imminent iv. Right to abortion is not absolute a. Must be balanced against state’s interest in protecting ‘ prenatal life’ 1. Rejected state’s claim that fetuses are persons 2. There is not a compelling interest in protecting potential life 3. Enormous disagreement as to when life begins 4. When those trained don’t know what=life→court shouldn’t 5. Compelling interest exists at viability b. State has a compelling interest to protect ‘ maternal health’ 1. Compelling interests exists at 1st^ trimester 2. After the first trimester→this is when it became more dangerous than birth v. Trimester Breakdown: a. 1 st^ trimester – government couldn’t prohibit abortions and could regulate abortions only as it regulated other medical procedures (such as requiring being performed by a licensed physician) b. 2 nd^ trimester – government could not outlaw abortions, but the government may if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health

congrese because without their competence to balance risks when there are other safe procedures available)

Stenberg says that if there are women that will benefit, then procedure is ok, but here, deferring to legislature’s findings that it is never medically necessary →no benefit

Gender Discrimination in Law: Cases and Principles, Study notes of Law

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