Myra Bradwell, who was denied admission to the Illinois bar and sued.
In the early 1900s, the Court saw itself as the benevolent protector of women. For example, it upheld maximum hour laws protecting women (Muller v Oregon, 1908), while striking down similar laws if they also applied to men. Even into the mid-twentieth century, challenges to gender classifications were consistently rebuffed. In 1948, in Goesaert v Cleary, the Court upheld a state law that prohibited a woman from being licensed at a bartender unless the tavern owner was her husband or father. (Male bartenders, the Court reasoned, would be better able to preserve order in a bar.) As late as 1961, in Hoyt v Florida, the Court sustained an automatic exemption from jury duty for women, noting "The woman is still regarded as the center of home and family life."
The first successful challenge to a sex classification came in 1971, in Reed v Reed. The Court struck down an Idaho law designating the male offspring as the adminstrator of the estate when none is specified in the will. The Court concluded that the law lacked a rational basis. Two years later, in Frontiero v Richardson, a regulation allowing male members of the military to automatically claim their spouses as dependents, but requiring female members of the military to prove the dependency of their spouses was struck down. Four members of the Frontiero Court applied strict scrutiny, but other justices rejected that approach, arguing that the pendency of the Equal Rights Amendment was a factor in their decision. It being widely assumed that the effect of the ERA would be to compel application of a strict scrutiny test to sex classifications, several Court members suggested the appropriateness of waiting for the constitutional amendment process to work its course. Ultimately, the ERA fell three states short of ratification, largely over such concerns as mixed sex bathrooms and women being put in combat positions.
on an intermediate scrutiny (important state interest and the
serves the state's goal) approach in Craig v Boren,
invalidating a law
banned the sale of 3.2% beer to 18 to 20-year-old males, while allowing
purchase by females of the same age. The same test resulted in a
decision in 1981 upholding a California law that allowed males, but not
females, to be charged with statutory rape (Michael M. v. Superior
Taken together, the two cases suggest the unpredictability of the
scrutiny test used by the Court. Whereas strict scrutiny almost
always results in a law's invalidation, and the rational basis test
almost always results in a law being upheld, the result of applying the
intermediate scrutiny test very much depends on the values and
perspectives of the judges applying it.
2. What are the arguments for and against applying heightened judicial scrutiny to classifications disadvantaging women? To classifications disadvantaging men?
3. What are some of the real differences between men and women that may legitimately be the basis for a legislative classification based on sex?
4. Should the ERA have been adopted? What gender-based classifications would become unconstitutional if it had been adopted? Would a ban on women in combat positions be unconstitutional? Would bathrooms segregated by sex be unconstitutional? Would it be unconstitutional to punish female topless bathers, but not male topless bathers?
5. How do you explain the fact that many polls in the 1970s showed greater support for the ERA among males than among females?
6. Is the Court's approach of using intermediate scrutiny to review gender classifications a sound one? What problems to you see with the Court's approach?
7. What options were open to the Oklahoma legislature after the Court invalidated the sex classification in its beer law?
7. Do you agree that the sex classification in California's statutory rape law challenged in Michael M. was supported by an important state interest and the the classification was substantially related to that interest?
8. Does a state disability insurance plan that excludes coverage for the costs of pregancy, while covering most other medical costs, make a gender-based classification that justifies intermediate scrutiny? See Gelduigig v Aiello (1974), a 6 to 3 decision holding that the law classifies medical procedures, not persons based on sex, and therefore is subject only to rational basis review.
9. Does a law that disproportionately disadvantages women, such as a state law that gives a hiring preference for state jobs to military veterans (who tend to be disproportionately male) justify the application of intermediate scrutiny? See Personnel Administrator of Massachusetts v Feeney (1979), where the Court held that in the absence of a gender classification in the statute, or a showing of intentional discrimination based on gender, only a rational basis test applies.