CONCLUSION: Only the Equal Rights Amendment can guarantee that sex will be considered a “suspect” classification entitled to the same strict scrutiny courts now reserve only for race, religion, and national origin.
AND STANDARDS OF REVIEW
A Layperson’s Guide to Understanding Legal Terms Pertinent to the Equal Rights Amendment
Classification defines a group with a common trait or designation. There are many classifications.
Standard of review refers to the test, weight or scrutiny the court gives to laws that pertain specifically to a particular classification in order to determine whether the law is just and/or constitutional. Currently the court uses three – they are: rational basis scrutiny, strict scrutiny, and the more recent intermediate scrutiny. These standards are not in the Constitution. They have been developed over time, through case law.
Rational basis scrutiny is the lowest or the easiest standard for a law to pass. The court uses this test to review laws pertaining to social and economic regulations. These are laws that cover people classified by age, by occupations that require licensing, and by activities that are licensed or regulated. Examples are: school attendance, driving, and mandatory seatbelts for car occupants. If challenged, the court requires the law to be reasonable and be “rationally related” to a legitimate governmental interest.
Intermediate scrutiny – See Case Law: Gender Classification and the U.S. Supreme Court.
Strict scrutiny is the highest test or standard of review and is the most difficult for a law to pass. Strict scrutiny is used to consider classifications called suspect.
Suspect classifications are: Race, Religion, and National Origin. The Court requires a law to be exceedingly persuasive and demonstrate a compelling state interest. This means there must be an extremely good reason to uphold a law based on one of these classifications.
Sex or gender classification has a mixed history with regard to the standard of review used by the courts. Rational basis scrutiny was used exclusively from the time the Constitution was adopted, in 1789 until 1976. During the 19th and most of the 20th centuries rational basis scrutiny allowed the court to decide sex discrimination cases using a standard based on the norms that society considered acceptable for women. Thus Supreme Court decisions denying women the right to vote, practice law, serve on juries, work as bar tenders, etc. were considered “rationally reasonable” because the Court claimed these laws “protected” women or kept them in their “proper sphere.”
Note: Although the 19th Amendment, introduced the word ”sex” into the Constitution, in 1920, it applies only to the right to vote. Voting is the only constitutionally protected right that women have.
CASE LAW: GENDER CLASSIFICATION
AND THE U.S. SUPREME COURT
Reed v Reed, 404 U.S. 71 (1971) This was the first successful challenge to a gender classification and definitely sparked a period of judicial interest in this particular classification. However the law was struck down because it did not meet a rational basis test. Justice Warren Burger said the question at issue was “whether a difference in the sex of competing applicants [bears] a rational relationship to a state objective.”
Note: Congress was debating the Equal Rights Amendment in 1971, and many believe this debate influenced the Court’s reasoning.
Frontiero v Richardson, 411 U.S. 677 (1973) Justice Brennan attempted to have the Supreme Court declare sex a suspect classification because “sex is an immutable characteristic.” A majority of the court acknowledged that, “Our nation has had a long and unfortunate history of sex discrimination.” In a 5-4 decision, the Court declined to rule sex as suspect saying, “The proposed Equal Rights Amendment will decide this question.”
Note: the majority did not wish to interfere with the ERA ratification process that was underway at that time.
Craig v Boren, 429 U.S. 190 (1976) As an attorney, Ruth Bader Ginsburg argued that sex warranted a higher standard of review than rational basis and convinced the Supreme Court to move the level of scrutiny for gender classification to Intermediate scrutiny. While intermediate scrutiny is an improvement, it does not make sex a suspect classification that the Court reserves for race, religion, and national origin.
United States v Virginia et al., Petitioners (1996) In a 5-4 decision, the Supreme court allowed women to enter the all-male Virginia Military Institute (VMI). Justice Ruth Bader Ginsburg, in the majority opinion, referred to skeptical scrutiny. This is a stricter standard of review than intermediate scrutiny. It would appear that Justice Ginsburg is attempting to edge the Court closer to considering sex as suspect. However, such a Supreme Court declaration will never have the force of a constitutional amendment nor a guarantee that future courts will use the higher standard of review and not revert to the lower rational basis standard.
In fact, ever since Craig v Boren, the Court has used various standards of review when considering sex discrimination cases. An amicus brief in United States v Commonwealth of Virginia et al. points out:
- Intermediate scrutiny is an “unworkable half measure” that has led to inconsistent and unfavorable results in lower courts such as validating Virginia laws based on gender.
- White men receive greater constitutional protection from race-conscious affirmative action plans, however benignly intended, than women receive from sex discrimination. Adarand Constructors Inc. v Pena, 115 S Ct. 2097 (1995), and the City of Richmond v J.A. Croson Co., 488 U.S. 469 (1989).
Justice Antonin Scalia clearly describes the capriciousness of the Court in his dissent of the VMI decision. Scalia writes:
- I shall devote most of my analysis to evaluating the court’s opinion on the basis of our current equal-protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: “rational basis” scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. (Emphasis added.)
Further on in the VMI case Justice Scalia, a so-called strict constructionist, chillingly illustrates how precarious women’s rights are without the constitutional guarantee of the Equal Rights Amendment:
- More specifically, it my view, that when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.
In a more positive vein, Justice Ginsburg has written:
- With the Equal Rights Amendment, we may expect Congress and the state legislatures to undertake in earnest, systematically and pervasively, the law revision so long deferred. And in the event of legislative default the courts will have an unassailable basis for applying the bedrock principle: All men and all women are created equal . (Emphasis added.)
Definitions prepared by Laura Callow with research assistance from Jean Ledwith King and Megan McMillan, July 2002. Laura Callow: E-mail MichERAmerica@cs.com, telephone 734-425-3572.
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