Intermediate Judicial Scrutiny
Without the Equal Rights Amendment, women's rights supporters faced a more difficult task in convincing the courts to set aside state laws and policies that perpetuated inequality and sex discrimination. The main constitutional tool for litigating women's rights cases has been the Equal Protection Clause of the Fourteenth Amendment. A key issue in equal protection analysis by the courts is what standard of judicial scrutiny to apply to the challenged legislation. Since the 1970s, the Supreme Court has applied "heightened" or "intermediate" judicial scrutiny to cases involving matters of discrimination based on sex.
In 1971, the Supreme Court, in Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225, extended the application of the Equal Protection Clause of the Fourteenth Amendment to gender-based discrimination. Women's rights supporters sought to have the Court include sex as a "suspect classification." 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. If a suspect classification is not involved, the Court will apply the RATIONAL BASIS TEST, which requires the state to provide any reasonable ground for the legislation. Under strict scrutiny, the government has a difficult burden to meet, while under rational basis, most laws will be upheld.
The Supreme Court has refused to make sex a suspect classification, but it did not impose the rational basis test on matters involving sex discrimination. Instead, the Court developed the intermediate or heightened scrutiny test. As articulated in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Thus, intermediate scrutiny lies between strict scrutiny and rational basis.
The Supreme Court has sustained numerous challenges to gender-based discrimination, thereby mandating equal rights under the law. It has established the right of equality in laws dealing with survivors' benefits (Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S. Ct. 1225, 43 L. Ed. 2d 514 ), ALIMONY (Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 ), sexbased mortality tables (City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 98 S. Ct. 1370, 55 L. Ed. 2d 267 ), and pensions (Arizona Governing Committee v. Norris, 463 U.S. 1073, 103 S. Ct. 3492, 77 L. Ed. 2d 1236 ).
Nevertheless, the Court has upheld laws that apply sex-based distinctions. In Michael M. v. Superior Court, 450 U.S. 464, 101 S. Ct. 1200, 67 L. Ed. 2d 437 (1981), the Court upheld a STATUTORY RAPE law that set different ages of consent for females and males. The Court also upheld, in ROSTKER V. GOLDBERG, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981), the Military Selective Service Act (50 U.S.C.A. App. § 451 et seq.), passed by Congress in 1980, though only men are required to register.
The Court has granted women equal rights to attend publicly funded colleges and universities that have traditionally enrolled only men. In UNITED STATES V. VIRGINIA, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996), the Court ruled that the Virginia Military Institute (VMI), a publicly funded military college, must end its all-male enrollment policy and admit women. According to the Court, the all-male policy violated the Equal Protection Clause of the Fourteenth Amendment.
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