Introduction [287]

 

Using the Equal Protection Clause, the Court fashioned a middle tier standard of scrutiny in the gender area.

 

§9.01   Changing Attitudes Toward Gender-Based Classifications [287-297]

 

For much of our Constitutional history, the Supreme Court did not construe the Equal Protection Clause as prohibiting gender discrimination. The Court applied heightened scrutiny to gender discrimination in Reed v. Reed, 404 U.S. 71 (1971). The Court has devised a middle tier analysis to invalidate a number of government programs. In Craig v. Boren, 429 U.S. 190 (1976), the Court struck down an Oklahoma statute that prohibited the sale of 3.2 percent beer to males under the age of 21 and to females under age 18. In Craig, the Court applied a middle tier standard: to survive scrutiny, a gender classification “must serve important governmental objectives and must be substantially related to achievement of those objectives.” Id. at 197. In Virginia v. United States, 518 U.S. 515 (1996), the Court prohibited “Virginia from reserving exclusively to men the unique educational opportunities” [id. at 519] afforded by the Virginia Military Institute (VMI). “[T]he reviewing court must determine whether the proffered justification is ‘exceedingly persuasive.’... The State must show ‘at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” Id. at 532-33.

 

§9.02   Employment Discrimination Based on Gender [297-300]

 

Personnel Administrator v. Feeney, 442 U.S. 256 (1979), upheld the Massachusetts Veterans Preference Statute requiring that all veterans who qualified for state civil service positions had to be considered for appointment ahead of qualifying non-veterans. Women applicants for civil service jobs alleged that the statute favored men because they historically had served in the military in far greater numbers than women. Feeney illustrates the effect of the intentional discrimination requirement in the gender context.

 

§9.03   Gender Discrimination in Government Benefit Programs [300-303]

 

Some government benefit programs are designed to discriminate in favor of women. The Court both upheld some of these programs and invalidated others. As in other areas of gender discrimination, cases involving government benefit programs have attempted to define the elusive line between the legitimate need to remedy past discrimination and the maintenance of stereotypical views of women.

 

§9.04   Discrimination Involving Pregnancy [303-306]

 

A final area that implicates gender discrimination involves pregnancy. Since the early constitutional decisions, this area of law has become dominated by statutes.