Sex Discrimination

With the defeat of the ERA, constitutional interpretation in the area of sex discrimination has been largely based on the Fourteenth Amendment. In 1971, in Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225, the Supreme Court extended the application of the EQUAL PROTECTION CLAUSE of the Fourteenth Amendment to gender-based discrimination in striking down an Idaho law that preferred men to women as probate administrators.

In Reed the Court appeared to be moving toward making sex a "suspect classification" under the Fourteenth Amendment. The SUSPECT CLASSIFICATION doctrine holds that laws classifying people according to race, ethnicity, and religion are inherently suspect and are subject to the STRICT SCRUTINY test of JUDICIAL REVIEW. Strict scrutiny forces the state to provide a compelling state interest for the challenged law and demonstrate that the law has been narrowly tailored to achieve its purpose. Although strict scrutiny is not a precise test, it is far more stringent than the traditional RATIONAL BASIS TEST, which requires only that the government offer a

reasonable ground for the legislation. Therefore, making sex a suspect classification would have dramatically improved the chances that sexbased laws would be struck down.

The Supreme Court, however, has declined to make sex a suspect classification. Nevertheless, it has invalidated a number of sex-based policies under a "heightened scrutiny" or "intermediate scrutiny" test. In Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), the Court articulated its intermediate standard of review for sex-based policies. According to this test, "classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives." Presumably, this test is stricter than the rational basis test but less strict than the compelling state interest test.

In Craig the Court struck down an Oklahoma law that outlawed the sale of beer containing less than 3.2 percent alcohol to females under the age of 18 and males under the age of 21. Oklahoma argued that the law was a public safety measure and purported to show that men between 18 and 21 were more likely to be arrested for drunk driving than were women in the same age bracket. The Court rejected this argument, holding that the state had failed to demonstrate a substantial relationship between its sexually discriminatory policy and its admittedly important interest in traffic safety.

In Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), the Court reviewed an Alabama law that required divorced men, under certain circumstances, to make ALIMONY payments to their ex-wives but exempted women in the same circumstances from paying alimony to their ex-husbands. The state argued that this policy was designed to compensate women for economic discrimination produced by the institution of marriage. Though the Court accepted that such compensation was an important state interest, it concluded that the law was not substantially related to the achievement of this objective. Justice WILLIAM J. BRENNAN JR., in his majority opinion, pointed out that wives who were not dependent on their husbands benefited from the disparate treatment.

In other cases, however, the Court has upheld gender-based policies. In one of its most controversial decisions, ROSTKER V. GOLDBERG, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981), the Court upheld the constitutionality of a male-only draft registration law, the Military Selective Service Act (MSSA) of 1980 (50 U.S.C.A. App. § 451 et seq.). In his majority opinion, Justice WILLIAM REHNQUIST rejected the idea that the MSSA violated the FIFTH AMENDMENT by authorizing the president to require the registration of males and not females. Rehnquist noted that the statute involved national defense and military affairs, an area that the Court had accorded the greatest deference. He concluded that Congress had not acted unthinkingly or reflexively in rejecting the registration of women. He pointed out that the question had received national attention and was the subject of public debate in and out of Congress.

Rehnquist noted that "women as a group, unlike men as a group, are not eligible for combat" under statute and established policy. These combat restrictions meant that Congress had a legitimate basis for concluding that women "would not be needed in the event of a draft." Therefore, there was no need to register women. The law did not violate equal protection because the exemption of women from registration was closely related to the congressional purpose of registration as a way to "develop a pool of potential combat troops." In upholding the draft law, the Court avoided applying the intermediate scrutiny test.