Here are a few notes and questions on these cases:
1. Reed v. Reed--the Court purports to be applying the rational basis test, but did it? Is this a good example of "medium rare" scrutiny in which the Court pays lip service to the rational basis test but in reality applies a heightened form of scrutiny? Suppose, for example, that a state were to legislate a preference for the older of otherwise equally-entitled heirs to be named the administrator of an intestate's estate? Do you think this "arbitrary" age classification violates the EPC? Or is this merely an example of how the rational basis test ought to work? Is either gender or age in any way related to a logical government interest?
2. Notice that in Frontiero a plurality (but not a majority) wished to treat gender as a suspect classification entitled to strict scrutiny. If this had succeeded, would public schools and state universities be allowed to maintain separate but equal athletic programs for men and women? What would happen if a school had, say, only one team in each sport and selected players based upon athletic ability? How many women would make the basketball team? The baseball team? The soccer team? The football team? The tennis team? The track team? Could the state maintain separate men's and women's prisons?
3. Craig v. Boren held that gender is a quasi-suspect classification reviewed under intermediate scrutiny? Thus, when a state legislates a gender classification it must be prepared to defend it by showing that the gender line is substantially related to the advancement of important governmental objectives. In Craig, Oklahoma used gender as a proxy for responsible drinkers/drivers--kind of like sugar and spice and everything nice for young women, and untrustworthy, irresponsible, drunk drivers for young men! How accurate is this proxy as a means of screening out drunk drivers? As Justice Stevens pointed out, it "is not totally irrational." Really? There was some statistical evidence to support it. It might be good enough for rational basis review, but is gender "substantially related" to drinking and driving? Is it overinclusive? Underinclusive? Both overinclusive and underinclusive? Does it even satisfy a true rational basis test? What do such weak gender statistics tell you about Mr. Craig's individual character?
4. Rostker--the Court says gender is substantially related to draft registration because the purpose of the draft is to prepare for combat and, since women are excluded from combat, it makes perfect since to exclude women from the draft. Hmmm. Makes sense, no? Of course, the validity of the draft exclusion depends upon the validity of the combat exclusion. Is the combat exclusion based upon an obsolete gender stereotype of men protecting women from common enemies? Is there a warrior gender and a "keep-the-home-fires-burning" gender? Who would you rather have protect you from the enemy--Xena or Woody Allen? Is this warrior/non-warrior stereotype overinclusive? Underinclusive? Both? Is Rostker still good law now that the combat exclusion has been rescinded and women are eligible for combat assignments?
5. United States v. Virginia--did the Court apply intermediate scrutiny or "medium well done" scrutiny in this case? Does a state university have a compelling interest in educational autonomy, an interest that includes the right to admit students that best serve the school's educational objectives? Or should federal courts decide issues concerning the school's educational mission and which students best serve the school's educational ideals? Does Justice Ginsburg try to have it both ways in her majority opinion? She says gender cannot be used to exclude "women who have the will and capacity" to participate in VMI's "citizen-soldier" educational program. But she also seems to say that VMI must "adjust aspects of the physical training programs." (p. 794, n.19) If "some women" are equally qualified for VMI's military training, why do these qualified women need the school to "adjust (by which Ginsburg means lower) the school's physical training standards?
1. Reed v. Reed--the Court purports to be applying the rational basis test, but did it? Is this a good example of "medium rare" scrutiny in which the Court pays lip service to the rational basis test but in reality applies a heightened form of scrutiny? Suppose, for example, that a state were to legislate a preference for the older of otherwise equally-entitled heirs to be named the administrator of an intestate's estate? Do you think this "arbitrary" age classification violates the EPC? Or is this merely an example of how the rational basis test ought to work? Is either gender or age in any way related to a logical government interest?
2. Notice that in Frontiero a plurality (but not a majority) wished to treat gender as a suspect classification entitled to strict scrutiny. If this had succeeded, would public schools and state universities be allowed to maintain separate but equal athletic programs for men and women? What would happen if a school had, say, only one team in each sport and selected players based upon athletic ability? How many women would make the basketball team? The baseball team? The soccer team? The football team? The tennis team? The track team? Could the state maintain separate men's and women's prisons?
3. Craig v. Boren held that gender is a quasi-suspect classification reviewed under intermediate scrutiny? Thus, when a state legislates a gender classification it must be prepared to defend it by showing that the gender line is substantially related to the advancement of important governmental objectives. In Craig, Oklahoma used gender as a proxy for responsible drinkers/drivers--kind of like sugar and spice and everything nice for young women, and untrustworthy, irresponsible, drunk drivers for young men! How accurate is this proxy as a means of screening out drunk drivers? As Justice Stevens pointed out, it "is not totally irrational." Really? There was some statistical evidence to support it. It might be good enough for rational basis review, but is gender "substantially related" to drinking and driving? Is it overinclusive? Underinclusive? Both overinclusive and underinclusive? Does it even satisfy a true rational basis test? What do such weak gender statistics tell you about Mr. Craig's individual character?
4. Rostker--the Court says gender is substantially related to draft registration because the purpose of the draft is to prepare for combat and, since women are excluded from combat, it makes perfect since to exclude women from the draft. Hmmm. Makes sense, no? Of course, the validity of the draft exclusion depends upon the validity of the combat exclusion. Is the combat exclusion based upon an obsolete gender stereotype of men protecting women from common enemies? Is there a warrior gender and a "keep-the-home-fires-burning" gender? Who would you rather have protect you from the enemy--Xena or Woody Allen? Is this warrior/non-warrior stereotype overinclusive? Underinclusive? Both? Is Rostker still good law now that the combat exclusion has been rescinded and women are eligible for combat assignments?
5. United States v. Virginia--did the Court apply intermediate scrutiny or "medium well done" scrutiny in this case? Does a state university have a compelling interest in educational autonomy, an interest that includes the right to admit students that best serve the school's educational objectives? Or should federal courts decide issues concerning the school's educational mission and which students best serve the school's educational ideals? Does Justice Ginsburg try to have it both ways in her majority opinion? She says gender cannot be used to exclude "women who have the will and capacity" to participate in VMI's "citizen-soldier" educational program. But she also seems to say that VMI must "adjust aspects of the physical training programs." (p. 794, n.19) If "some women" are equally qualified for VMI's military training, why do these qualified women need the school to "adjust (by which Ginsburg means lower) the school's physical training standards?
6. Here is the "law" coming out of the VMI case:
--The burden of establishing the "exceedingly persuasive" justification for use of gender classifications is "demanding" and "rests entirely on the State." (p.791)
--the State must show "at least that the [gender]classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives'" (id.)
--"the justification must be genuine, not hypothesized or invented post hoc in response to litigation." (id.)
--"And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." (Id. See also p. 793)
This demanding scrutiny (medium well? intermediate scrutiny on steroids?) is why I think the combat exclusion and draft exclusion would be difficult to justify should they be challenged today under U.S. v. Virginia. Try to justify the combat exclusion without resorting to overbroad generalizations about the ability of most women to carry 150 pound backpacks or kill the enemy in close combat. As Justice Ginsburg said, "generalizations about 'the way women are,' estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description." (p. 793)
