Gender Discrimination and the l4th Amendment’s Equal
Protection Clause – Chapter 10
I. CURRENT Court Test for Gender Discrimination
A law/govt action that discriminates on the basis of gender will be held constitutional [Not to
violate the Equal Protection Clause] ONLY if the law/action is…
1. Substantially Related to an
2. Important Governmental Interest
[if the government cannot meet the above test, the law is struck down – held unconstitutional]
II. Case Law – Historical Progression of Prohibiting Gender Disc.
A. Early Examples of Gender Discrimination upheld
Minor v. Happersatt (1875) State denial of a woman’s right to vote does not violate the 14th amendment.
Bradwell v. Illinois (1873): State law barring women from obtaining a law license not against 14th
amendment. Such a policy is rational for a state to steer women into fulfilling the noble and benign offices
of mother and wife.
B. The Court Strikes down a Gender-Based Preference
Reed v. Reed (1971): 1st use of the Equal Protection Clause to strike down Sex Discrimination
Idaho law gave men a preference as administrators of estates. The state claimed it acted to reduce workload
of the courts by eliminating hearings between different-sex siblings. Despite this rationale, the court struck
the law down as violating rational scrutiny - though the tone of their language implied a heightened
scrutiny.
Frontiero v. Richardson (1973): Court rejects rational scrutiny for gender; plurality for Strict Scty.
Court finds unconstitutional a federal law which provided benefits to a surviving female spouse of military
service personal, but not to surviving male spouses. Four justices (a plurality) thought gender should be
evaluated under strict scrutiny - the remaining four thought the rational basis test was adequate for gender
analysis.
C. The Court Establishes heightened scrutiny [Intermediate Scrutiny] for Gender
discrimination and other quasi-suspect classifications.
Craig v. Boren (1976): Sex Discrimination analyzed under Intermediate Scrutiny for 1st time.
Oklahoma law prohibited the d the sale of”3-2” beer only to males under 21. However, “under 21” females
were not restricted. Oklahoma argued that 2% of males in the 18-2 1 age group had been arrested for DWI,
while only .18% of females had been. The Court analyzed gender discrimination for the first time under
the new Intermediate Scrutiny test and found that “maleness” was not substantially related to the important
government interest of preventing drunk driving. A very small portion of males in the whole age group
were arrested for DWI and thus a law banning all males in that group was not “substantially related” to the
state interest of curbing male DWIs. Also, the law prohibiting the “sale” of the beer was not substantially
related to the government goal of curbing male DWI since it was not illegal to actually drink the beer. The
government interest was not “substantial” because 3-2 beer is supposedly not very intoxicating anyway;
and even if it could be argued that it was, the law only prohibited the sale of the beer to males.
Caban v. Mohammed (1979): No Substantial relation between females and determining adoptions
Facts: NY law denied a father the right to veto his biological child’s adoption. It was the sole decision of
the child’s mother.
Holding: The statute is unconstitutional. There is no “universal difference” between men and woman as
parents at every stage of the child’s development. The state might be free to make such distinctions while
the child is an infant or where the father had not participated in the child’s rearing.
