Class #7

1. Equal Protection Clause (II): Gender, Alienage, Sexual Orientation, and Other Types of Discriminations Class #7

2. I. Gender Classifications: Michael M. v. Superior Court of Sonoma County (1981) & United States v. Virginia (1996) • II. Alienage Classifications: Plyler v. Doe (1982) • III. Sexual Orientation Classifications: Romer v. Evans (1996) • IV. Review of Classes #6 & #7

3. I. Gender Classifications • Level of scrutiny? • Minor v. Happersett (1984): the Supreme Court upheld the constitutionality of excluding women from voting -> Nineteenth Amendment • Mutter v. Oregon; West Coast Hotel and the end of the Lochner era • Hoyt v. Florida (1961): the Supreme Court upheld a law automatically exempting women from jury service • The emergence of intermediate scrutiny: • Reed v. Reed (1971): first invalidation of a gender classification – but the Court applied rational basis review • Craig v. Boren (1976): intermediate scrutiny

4. Michael M. v. Superior Court: • The Supreme Court upheld California’s statutory rape law that defined statutory rape exclusively as an act of sexual intercourse accomplished by a male with a female under the age of 18 years. • Application of the rational basis test • United States v. Virginia: • Virginia’s exclusion of women from the educational opportunities provided by VMI denies to women the equal protection of the EPC. • Intermediate scrutiny « with teeth »: the State must demonstrate an « exceedingly persuasive justification » for the action • Three additions to the IS test: • True purpose of the State • Sex classifications cannot be used to « create or perpetuate the legal, social, and economic inferiority of women » • Sex classifications cannot rely on « overbroad generalizations » about women

5. What should be the level of scrutiny? • In favor of strict scrutiny? • Long history of discrimination • Overbroad stereotypes • Language of the EPC • Immutable characteristic • Women are underrepresented in the political process • In favor of intermediate scrutiny? • Intent of the Framers • Biological differences • Not isolated from men (Carolene Products) • Strict scrutiny would make it harder to implement affirmative action

6. Proving gender discrimination: • Either facial discrimination; either discriminatory impact + purpose (Personnel Administrator of Massachusetts v. Feeney, 1979) • Geduldig v. Aiello (1974): no gender discrimination when there is a lack of identity between the excluded disability and the gender • Case overruled by the Pregnancy Discrimination Act • Reasoning of Geduldig still applied in other contexts: Bray v. Alexandria Women’s Health Clinic (1985)

7. II. Alienage Classifications • Protection of « persons » under the DPC • Which level of scrutiny? • Strict scrutiny since 1971 – Graham v. Richardson • What level is appropriate? • Exception: alienage classifications related to self-government and the democratic process • Foley v. Connelie (1978): in this area, the State need only justify its classification by a showing of some rational relationship between the interest sought to be protected and the limiting classification • Is the exception justified? • Whether aliens should be able to vote • The Supreme Court openly manipulated the level of scrutiny

8. Plyler v. Doe (1982) • The Supreme Court declared unconstitutional a Texas law that provided a free public education for children of citizens and of documented aliens, but required that undocumented aliens pay for their shooting. • Which level of scrutiny? • Higher than rational basis • Need for the legislation to meet some « substantial goal » of the State • Plyler v. Doe is still good law today.

9. III. Sexual Orientation • Which level of scrutiny? • Romer v. Evans (1996) • Application of a rational basis test « with teeth »: • The classification must bear a rational relationship to an independent and legitimate legislative end. • Statutes that identify persons by a single trait and then denies them protection across the board are unconstitutional. • The law cannot be motivated by an « animosity » toward the class of persons affected.

10. United States v. Windsor (2013): DOMA is unconstitutional • Law born from the impermissible desire to disadvantage gays and lesbians (consistent with Romer v. Evans) • DOMA failed to serve a legitimate government purpose • Obergefell v. Hodges (2015): State laws prohibiting same-sex marriage are unconstitutional • Different rationale! Relies on the fundamental right to marry

12. Suspect classifications => Strict scrutiny • Race • National origin • Alienage (with the exception for government function) • Non-suspect classifications => Intermediate scrutiny • Legitimacy • Gender – intermediate scrutiny « with teeth » • Non-suspect classifications => Rational basis • Sexual orientation – rational basis « with teeth » • Mental disability (retardation) • Age • Poverty

13. Addendum on Race and NationalOrigin • How is discriminatory purpose proved? • Arlington Heights case (1977): « discriminatory purpose test »: • The impact of the law • The impact of the law is so clearly discriminatory as to allow no other explanation that that it was adopted for impermissible purposes • The history surrounding the government’s action • Particularly if it reveals a series of official actions taken for individious purposes • The specific sequence of events leading up to the decision challenged in the case • Whether the decision would have made a different choice had the applicant been white • The legislative or administrative history of the law • Where there are contemporary statements made by the government body who undertook the official action, minutes of its meetings, or reports • Applied equally to race, national origin, and gender classifications

14. IV. Review • Questions? • Equal Protection Flowchart