Equal Protection Clause II Gender Alienage Sexual Orientation

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

• 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

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

• 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

• 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

• 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)

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 selfgovernment 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

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.

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.

• 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

• 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

Addendum on Race and National Origin • 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 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

IV. Review • Questions? • Equal Protection Flowchart