Equal Protection: Gender and Other Groups

Applying the New Standard

Orr v. Orr (1979)

440 U.S. 268 (1979)

Vote: 6-3
Decision: Reversed
Majority: Brennan, joined by Stewart, White, Marshall, Blackmun, Stevens
Concurrence: Blackmun
Concurrence: Stevens
Dissent: Powell
Dissent: Rehnquist, joined by Burger

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question presented is the constitutionality of Alabama alimony statutes which provide that husbands, but not wives, may be required to pay alimony upon divorce.

On February 26, 1974, a final decree of divorce was entered, dissolving the marriage of William and Lillian Orr. That decree directed appellant, Mr. Orr, to pay appellee, Mrs. Orr, $1,240 per month in alimony. On July 28, 1976, Mrs. Orr initiated a contempt proceeding in the Circuit Court of Lee County, Ala., alleging that Mr. Orr was in arrears in his alimony payments. On August 19, 1976, at the hearing on Mrs. Orr’s petition, Mr. Orr submitted in his defense a motion requesting that Alabama’s alimony statutes be declared unconstitutional because they authorize courts to place an obligation of alimony upon husbands but never upon wives. The Circuit Court denied Mr. Orr’s motion and entered judgment against him for $5,524, covering back alimony and attorney fees. Relying solely upon his federal constitutional claim, Mr. Orr appealed the judgment … We noted probably jurisdiction … We now hold the challenged Alabama statutes unconstitutional and reverse.

In authorizing the imposition of alimony obligations on husbands, but not on wives, the Alabama statutory scheme “provides that different treatment be accorded … on the basis of … sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause,” Reed v. Reed (1971). The fact that the classification expressly discriminates against men rather than women does not protect it from scrutiny. Craig v. Boren (1976). “To withstand scrutiny” under the Equal Protection Clause, “‘classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.'” Califano v. Webster (1977). We shall, therefore, examine the three governmental objectives that might arguably be served by Alabama’s statutory scheme.

Appellant views the Alabama alimony statutes as effectively announcing the State’s preference for an allocation of family responsibilities under which the wife plays a dependent role, and as seeking for their objective the reinforcement of that model among the State’s citizens. Cf. Stern v. Stern (1973). We agree, as he urges, that prior cases settle that this purpose cannot sustain the statutes. Stanton v. Stanton … held that the “old notio[n]” that “generally it is the man’s primary responsibility to provide a home and its essentials,” can no longer justify a statute that discriminates on the basis of gender …

The opinion of the Alabama Court of Civil Appeals suggests other purposes that the statute may serve. Its opinion states that the Alabama statutes were “designed” for “the wife of a broken marriage who needs financial assistance,” 351 So. 2d at 905. This may be read as asserting either of two legislative objectives. One is a legislative purpose to provide help for needy spouses, using sex as a proxy for need. The other is a goal of compensating women for past discrimination during marriage, which assertedly has left them unprepared to fend for themselves in the working world following divorce. We concede, of course, that assisting needy spouses is a legitimate and important governmental objective …

Ordinarily, we would begin the analysis of the “needy spouse” objective by considering whether sex is a sufficiently “accurate proxy,” … for dependency to establish that the gender classification rests ” ‘upon some ground of difference having a fair and substantial relation to the object of the legislation,’ Reed v. Reed.” … Similarly, we would initially approach the “compensation” rationale by asking whether women had in fact been significantly discriminated against in the sphere to which the statute applied a sex-based classification, leaving the sexes “not similarly situated with respect to opportunities” in that sphere. Schlesinger v. Ballard (1975).

But in this case, even if sex were a reliable proxy for need, and even if the institution of marriage did discriminate against women, these factors still would “not adequately justify the salient features of” Alabama’s statutory scheme. Craig v. Boren. Under the statute, individualized hearings at which the parties’ relative financial circumstances are considered already occur. Russell v. Russell (1945) [other citations omitted]. There is no reason, therefore, to use sex as a proxy for need. Needy males could be helped along with needy females with little if any additional burden on the State. In such circumstances, not even an administrative convenience rationale exists to justify operating by generalization or proxy. Similarly, since individualized hearings can determine which women were in fact discriminated against vis-a-vis their husbands, as well as which family units defied the stereotype and left the husband dependent on the wife, Alabama’s alleged compensatory purpose may be effectuated without placing burdens solely on husbands. Progress toward fulfilling such a purpose would not be hampered, and it would cost the State nothing more, if it were to treat men and women equally by making alimony burdens independent of sex …

Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the “proper place” of women and their need for special protection. United Jewish Organizations v. Carey (1977) (opinion concurring in part). Thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination must be carefully tailored. Where, as here, the State’s compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex. And this is doubly so where the choice made by the State appears to redound-if only indirectly-to the benefit of those without need for special solicitude …

Therefore, it is open to the Alabama courts on remand to consider whether Mr. Orr’s stipulated agreement to pay alimony, or other grounds of gender-neutral state law, bind him to continue his alimony payments.”

Reversed and remanded.

Administrator of Mass. v. Feeney (1979)

442 U.S. 256 (1979)

Vote: 7-2
Decision: Reversed
Majority: Stewart, joined by Burger, White, Blackmun, Powell, Rehnquist, Stevens
Concurrence: Stevens, joined by White
Dissent: J. Marshall, joined by J. Brennan

MR. JUSTICE STEWART delivered the opinion of the Court.

This case presents a challenge to the constitutionality of the Massachusetts veterans’ preference statute … on the ground that it discriminates against women in violation of the Equal Protection Clause of the Fourteenth Amendment … [A]ll veterans who qualify for state civil service positions must be considered for appointment ahead of any qualifying nonveterans. The preference operates overwhelmingly to the advantage of males …

The Federal Government and virtually all of the States grant some sort of hiring preference to veterans. The Massachusetts preference, which is loosely termed an “absolute lifetime” preference, is among the most generous It applies to all positions in the State’s classified civil service, which constitute approximately 60% of the public jobs in the State. It is available to “any person, male or female, including a nurse,” who was honorably discharged from the United States Armed Forces after at least 90 days of active service, at least one day of which was during “wartime.” Persons who are deemed veterans and who are otherwise qualified for a particular civil service job may exercise the preference at any time and as many times as they wish.

Civil service positions in Massachusetts fall into two general categories, labor and official. For jobs in the official service, with which the proofs in this action were concerned, the preference mechanics are uncomplicated. All applicants for employment must take competitive examinations. Grades are based on a formula that gives weight both to objective test results and to training and experience. Candidates who pass are then ranked in the order of their respective scores on an “eligible list.” Chapter 31, § 23, requires, however, that disabled veterans, veterans, and surviving spouses and surviving parents of veterans be ranked — in the order of their respective scores — above all other candidates.

Rank on the eligible list and availability for employment are the sole factors that determine which candidates are considered for appointment to an official civil service position. When a public agency has a vacancy, it requisitions a list of “certified eligibles” from the state personnel division. Under formulas prescribed by civil service rules, a small number of candidates from the top of an appropriate list, three if there is only one vacancy, are certified. The appointing agency is then required to choose from among these candidates. Although the veterans’ preference thus does not guarantee that a veteran will be appointed, it is obvious that the preference gives to veterans who achieve passing scores a well nigh absolute advantage.

During her 12-year tenure as a public employee, Ms. Feeney took and passed a number of open competitive civil service examinations. On several she did quite well, receiving in 1971 the second highest score on an examination for a job with the Board of Dental Examiners, and in 1973 the third highest on a test for an Administrative Assistant position with a mental health center. Her high scores, however, did not win her a place on the certified eligible list. Because of the veterans’ preference, she was ranked sixth behind five male veterans on the Dental Examiner list. She was not certified, and a lower scoring veteran was eventually appointed. On the 1973 examination, she was placed in a position on the list behind 12 male veterans, 11 of whom had lower scores. Following the other examinations that she took, her name was similarly ranked below those of veterans who had achieved passing grades.

The veterans’ hiring preference in Massachusetts, as in other jurisdictions, has traditionally been justified as a measure designed to reward veterans for the sacrifice of military service, to ease the transition from military to civilian life, to encourage patriotic service, and to attract loyal and well disciplined people to civil service occupations.

Notwithstanding the apparent attempts by Massachusetts to include as many military women as possible within the scope of the preference, the statute today benefits an overwhelmingly male class. This is attributable in some measure to the variety of federal statutes, regulations, and policies that have restricted the number of women who could enlist in the United States Armed Forces, and largely to the simple fact that women have never been subjected to a military draft.

When this litigation was commenced, then, over 98% of the veterans in Massachusetts were male; only 1.8% were female. And over one-quarter of the Massachusetts population were veterans. During the decade between 1963 and 1973, when the appellee was actively participating in the State’s merit selection system, 47,005 new permanent appointments were made in the classified official service. Forty-three percent of those hired were women, and 57% were men. Of the women appointed, 1.8% were veterans, while 54% of the men had veteran status …

The sole question for decision on this appeal is whether Massachusetts, in granting an absolute lifetime preference to veterans, has, discriminated against women in violation of the Equal Protection Clause of the Fourteenth Amendment …

The equal protection guarantee of the Fourteenth Amendment does not take from the States all power of classification. Massachusetts Bd. Of Retirement v. Muria. Most laws classify, and many affect certain groups unevenly, even though the law itself treats them no differently from all other members of the class described by the law. When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern. New York City Transit Authority v. Beazer (other citations omitted).

When a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionably adverse, a twofold inquiry is thus appropriate. The first question is whether the statutory classification is indeed neutral in the sense that it is not gender based. If the classification itself, covert or overt, is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination …

Apart from the facts that the definition of “veterans” in the statute has always been neutral as to gender and that Massachusetts has consistently defined veteran status in a way that has been inclusive of women who have served in the military, this is not a law that can plausibly be explained only as a gender-based classification. Indeed, it is not a law that can rationally be explained on that ground. Veteran status is not uniquely male. Although few women benefit from the preference, the nonveteran class is not substantially all female. To the contrary, significant numbers of nonveterans are men, and all nonveterans-male as well as female-are placed at a disadvantage. Too many men are affected … to permit the inference that the statute is but a pretext for preferring men over women …

Veterans’ hiring preferences represent an awkward-and, many argue, unfair-exception to the widely shared view that merit and merit alone should prevail in the employment policies of government. After a war, such laws have been enacted virtually without opposition. During peacetime, they inevitably have come to be viewed in many quarters as undemocratic and unwise. Absolute and permanent preferences, as the troubled history of this law demonstrates, have always been subject to the objection that they give the veteran more than a square deal. But the Fourteenth Amendment “cannot be made a refuge from ill-advised … laws.” . District of Columbia v. Brooke. The substantial edge granted to veterans … may reflect unwise policy. The appellee, however, has simply failed to demonstrate that the law in any way reflects a purpose to discriminate on the basis of sex.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Roskter v. Goldberg (1981)

453 U.S. 57 (1981)

Vote: 6-3
Decision: Reversed
Majority: Rehnquist, joined by Burger, Stewart, Blackmun, Powell, Steven
Dissent: Marshall, joined by Brennan
Dissent: White, joined by Brennan

JUSTICE REHNQUIST delivered the opinion of the Court.

The question presented is whether the Military Selective Service Act … violates the Fifth Amendment to the United States Constitution in authorizing the President to require the registration of males and not female …

On July 2, 1980, the President, by Proclamation, ordered the registration of specified groups of young men pursuant to the authority … of the Act. Registration was to commence on July 21, 1980. Proclamation No. 4771, 3 CFR 82 (1980).

These events of last year breathed new life into a lawsuit which had been essentially dormant in the lower courts for nearly a decade. It began in 1971 when several men subject to registration for the draft and subsequent induction into the Armed Services filed a complaint in the United States District Court for the Eastern District of Pennsylvania challenging the MSSA on several grounds. A three-judge District Court was convened in 1974 to consider the claim of unlawful gender-based discrimination which is now before us …

Whenever called upon to judge the constitutionality of an Act of Congress-“the gravest and most delicate duty that this Court is called upon to perform,” Blodett v. Holden (1927), the Court accords “great weight to the decisions of Congress.” Columbia Broadcasting System, Inc. v. Democratic National Committee (1973).

The operation of a healthy deference to legislative and executive judgments in the area of military affairs is evident in several recent decisions of this Court.

The Solicitor General argues … emphasizing the deference due Congress in the area of military affairs and national security, that this Court should scrutinize the MSSA only to determine if the distinction drawn between men and women bears a rational relation to some legitimate Government purpose, United States Railroad Retirement Bd. V. Fritz (1980), and should not examine the Act under the heightened scrutiny with which we have approached gender-based discrimination. Michael M. v. Superior Court of Sonoma County (1981) [other citations omitted]. . We do not think that the substantive guarantee of due process or certainty in the law will be advanced by any further “refinement” in the applicable tests as suggested by the Government … In this case the courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision “military” on the one hand or “gender-based” on the other does not automatically guide a court to the correct constitutional result.

No one could deny that under the test of Craig v. Boren … the Government’s interest in raising and supporting armies is an “important governmental interest.” Congress and its Committees carefully considered and debated two alternative means of furthering that interest: the first was to register only males for potential conscription, and the other was to register both sexes. Congress chose the former alternative. When that decision is challenged on equal protection grounds, the question a court must decide is not which alternative it would have chosen, had it been the primary decision- maker, but whether that chosen by Congress denies equal protection of the laws.

The question of registering women for the draft not only received considerable national attention and was the subject of wide-ranging public debate, but also was extensively considered by Congress in hearings, floor debate, and in committee. Hearings held by both Houses of Congress in response to the President’s request for authorization to register women adduced extensive testimony and evidence concerning the issue.

Women as a group, however, unlike men as a group, are not eligible for combat. The restrictions on the participation of women in combat in the Navy and Air Force are statutory … The Senate Report specifically found that “[w]omen should not be intentionally or routinely placed in combat positions in our military services.” … The President expressed his intent to continue the current military policy precluding women from combat … and appellees present their argument concerning registration against the background of such restrictions on the use of women in combat.” … we must examine appellees’ constitutional claim concerning registration with these combat restrictions firmly in mind.

The existence of the combat restrictions clearly indicates the basis for Congress’ decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them …

The reason women are exempt from registration is not because military needs can be met by drafting men. This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups, such as would be the case with an all-black or all-white, or an all-Catholic or all-Lutheran, or an all-Republican or all-Democratic registration. Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.

Congress’ decision to authorize the registration of only men therefore, does not violate the Due Process Clause. The exemption of women from registration is not only sufficiently but also closely related to Congress’ purpose in authorizing registration. Craig v. Boren (1976) [other citations omitted]. The fact that Congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration, since the purpose of registration is to develop a pool of potential combat troops. As was the case in Schlesinger v. Ballard …”the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated” in this case … The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality …

… As the Senate Committee recognized a year before, “training would be needlessly burdened by women recruits who could not be used in combat.” … It is not for this Court to dismiss such problems as insignificant in the context of military preparedness and the exigencies of a future mobilization.

Congress also concluded that whatever the need for women for noncombat roles during mobilization, whether 80,000 or less, it could be met by volunteers …

In sum, Congress carefully evaluated the testimony that 80,000 women conscripts could be usefully employed in the event of a draft and rejected it in the permissible exercise of its constitutional responsibility. The District Court was quite wrong in undertaking an independent evaluation of this evidence, rather than adopting an appropriately deferential examination of Congress’ evaluation of that evidence.


Michael M. v. Superior Court of Sonoma County (1981)

450 U.S. 464 (1981)

Vote: 5-4
Decision: Affirmed
Plurality: Rehnquist, joined by Burger, Stewart and Powell
Concurrence: Stewart
Concurrence: Blackmun (in part)
Dissent: Brennan, joined by White and Marshall
Dissent: Stevens

JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE STEWART, and JUSTICE POWELL joined.

The question presented in this case is whether California’s “statutory rape” law … violates the Equal Protection Clause of the Fourteenth Amendment. Section 261.5 defines unlawful sexual intercourse as “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.” The statute thus makes men alone criminally liable for the act of sexual intercourse.

In July 1978, a complaint was filed in the Municipal Court of Sonoma County, Cal., alleging that petitioner, then a 17-year-old male, had had unlawful sexual intercourse with a female under the age of 18, in violation of § 261.5. The evidence adduced at a preliminary hearing showed that at approximately midnight on June 3, 1978, petitioner and two friends approached Sharon, a 16-year-old female, and her sister as they waited at a bus stop. Petitioner and Sharon, who had already been drinking, moved away from the others and began to kiss. After being struck in the face for rebuffing petitioner’s initial advances, Sharon submitted to sexual intercourse with petitioner. Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that §261.5 unlawfully discriminated on the basis of gender. The trial court and the California Court of Appeal denied petitioner’s request for relief and petitioner sought review in the Supreme Court of California …

As is evident from our opinions, the Court has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classifications … Unlike the California Supreme Court, we have not held that gender-based classifications are “inherently suspect” and thus we do not apply so-called “strict scrutiny” to those classifications. Stanton v. Stanton (1975). Our cases have held, however, that the traditional minimum rationality test takes on a somewhat “sharper focus” when gender-based classifications are challenged. Craig v. Boren (1976) (POWELL, concurring). In Reed v. Reed (1971) for example, the Court stated that gender-based classification will be upheld if it bears a “fair and substantial relationship” to legitimate state ends, while in Craig v. Boren … the Court restated the test to require the classification to bear a “substantial relationship” to “important governmental objectives.”

Underlying these decisions is the principle that a legislature may not

“make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class.”

Parham v. Hughes (1979) (plurality opinion of STEWART). Applying those principles to this case, the fact that the California Legislature criminalized the act of illicit sexual intercourse with a minor female is a sure indication of its intent or purpose to discourage that conduct … The justification for the statute offered by the State, and accepted by the Supreme Court of California, is that the legislature sought to prevent illegitimate teenage pregnancies …

We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the “purposes” of the statute, but also that the State has a strong interest in preventing such pregnancy. At the risk of stating the obvious, teenage pregnancies, which have increased dramatically over the last two decades, have significant social, medical, and economic consequences for both the mother and her child, and the State.

Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion. And of those children who are born, their illegitimacy makes them likely candidates to become wards of the State.

We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity …

The question thus boils down to whether a State may attack the problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse with a minor female. We hold that such a statute is sufficiently related to the State’s objectives to pass constitutional muster …

In any event, we cannot say that a gender-neutral statute would be as effective as the statute California has chosen to enact. The State persuasively contends that a gender-neutral statute would frustrate its interest in effective enforcement. Its view is that a female is surely less likely to report violations of the statute if she herself would be subject to criminal prosecution. In an area already fraught with prosecutorial difficulties, we decline to hold that the Equal Protection Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement …

But we find nothing to suggest that men, because of past discrimination or peculiar disadvantages, are in need of the special solicitude of the courts. Nor is this a case where the gender classification is made “solely for … administrative convenience,” Frontiero v. Richardson (1973), or rests on “the baggage of sexual stereotypes” as in Orr v. Orr.

As we have held, the statute instead reasonably reflects the fact that the consequences of sexual intercourse and pregnancy fall more heavily on the female than on the male.

Accordingly the judgment of the California Supreme Court is


Sessions v. Morales-Santana (2017)

582 U.S. ___ (2017)

Vote: 7-1
Decision: Reversed
Majority: Ginsburg joined by Roberts, Sotomayor, Kagan, Kennedy, and Breyer
Concurring: Thomas joined by Alito
Not participating: J. Gorsuch

JUSTICE GINSBURG delivered the opinion of the Court.

This case concerns a gender-based differential in the law governing acquisition of U. S. citizenship by a child born abroad, when one parent is a U. S. citizen, the other, a citizen of another nation. The main rule appears in 8 U. S. C. §1401(a)(7) (1958 ed.), now §1401(g) (2012 ed.). Applicable to married couples, §1401(a)(7) requires a period of physical presence in the United States for the U. S.-citizen parent. The requirement, as initially prescribed, was ten years’ physical presence prior to the child’s birth, §601(g) (1940 ed.); currently, the requirement is five years prebirth, §1401(g) (2012 ed.). That main rule is rendered applicable to unwed U. S.-citizen fathers by §1409(a). Congress ordered an exception, however, for unwed U. S.-citizen mothers. Contained in §1409(c), the exception allows an unwed mother to transmit her citizenship to a child born abroad if she has lived in the United States for just one year prior to the child’s birth.

The respondent in this case, Luis Ramón Morales-Santana, was born in the Dominican Republic when his father was just 20 days short of meeting §1401(a)(7)’s physical-presence requirement. Opposing removal to the Dominican Republic, Morales-Santana asserts that the equal protection principle implicit in the Fifth Amendment entitles him to citizenship stature …

Santana does not suffer discrimination on the basis of his gender. He complains, instead, of gender-based discrimination against his father, who was unwed at the time of Morales-Santana’s birth and was not accorded the right an unwed U. S.-citizen mother would have to transmit citizenship to her child. Although the Government does not contend otherwise, we briefly explain why Morales Santana may seek to vindicate his father’s right to the equal protection of the laws …

But we recognize an exception where, as here, “the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor’s ability to protect his own interests.” Powers v. Ohio (1991). José Morales’ ability to pass citizenship to his son, respondent Morales-Santana, easily satisfies the “close relationship” requirement. So, too, is the “hindrance” requirement well met. José Morales’ failure to assert a claim in his own right “stems from disability,” not “disinterest,”. Miller v. Albright (1998) (O’Connor, concurring in judgment).

Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. Hoyt v. Florida (1961). Today, laws of this kind are subject to review under the heightened scrutiny that now attends “all gender-based classifications.” J.E.B. v. Alabama ex rel. T. B. (1994).

Prescribing one rule for mothers, another for fathers, §1409 is of the same genre as the classifications we declared unconstitutional in Reed, Frontiero, Wiesenfeld, Goldfarb, and Westcott. As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an “exceedingly persuasive justification.” Kirchberg v. Feenstra (1981).

The defender of legislation that differentiates on the basis of gender must show “at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Mississippi Univ. For Women v. Hogan (1982).

History reveals what lurks behind §1409. Enacted in the Nationality Act of 1940 (1940 Act) … ended a century and a half of congressional silence on the citizenship of children born abroad to unwed parents. During this era, two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a non-marital child …

In accord with this eventual understanding, the Court has held that no “important [governmental] interest” is served by laws grounded, as §1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. Caban v. Mohammed. Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact …

Infecting the Government’s risk-of-statelessness argument is an assumption without foundation.”[F]oreign laws that would put the child of the U. S.-citizen mother at risk of statelessness (by not providing for the child to acquire the father’s citizenship at birth),” the Government asserts, “would protect the child of the U. S.-citizen father against statelessness by providing that the child would take his mother’s citizenship.” … The Government, however, neglected to expose this supposed “protection” to a reality check. Had it done so, it would have recognized the formidable impediments placed by foreign laws on an unwed mother’s transmission of citizenship to her child …

One can hardly characterize as gender neutral a scheme allegedly attending to the risk of statelessness for children of unwed U. S.-citizen mothers while ignoring the same risk for children of unwed U. S.-citizen fathers …

The gender-based distinction infecting §§1401(a)(7) and1409(a) and (c), we hold, violates the equal protection principle, as the Court of Appeals correctly ruled. For the reasons stated, however, we must adopt the remedial course Congress likely would have chosen “had it been apprised of the constitutional infirmity.” Levin v. Commerce Energy, Inc., (2010). Although the preferred rule in the typical case is to extend favorable treatment … this is hardly the typical case. Extension here would render the special treatment Congress prescribed in §1409(c), the one-year physical-presence requirement for U. S.-citizen mothers, the general rule, no longer an exception. Section 1401(a)(7)’s longer physical-presence requirement, applicable to a substantial majority of children born abroad to one U. S.-citizen parent and one foreign-citizen parent, therefore, must hold sway. Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, as the Government suggests, §1401(a)(7)’s now-five- year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers …

The judgment of the Court of Appeals for the Second Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Vorchheimer v. School Dist. of Philadelphia (1977)

430 U.S. 703 (1977)

Vote: 4-4
Decision: Per Curiam

Affirmed by an equally divided court.

Mr. Justice Rehnquist took no part in the consideration or decision of this case.

532 F.2d 880 (1976)

Vote: 2-1
Decision: Reversed
Majority: Weis joined by Markey
Dissent: Gibbons

JOSEPH F. WEIS, Jr., Circuit Judge.

Do the Constitution and laws of the United States require that every public school, in every public school system in the Nation, be coeducational? Stated another way, do our Constitution and laws forbid the maintenance by a public school board, in a system otherwise coeducational, of a limited number of single-sex high schools in which enrollment is voluntary and the educational opportunities offered to girls and boys are essentially equal? This appeal presents those questions and, after careful consideration, we answer negatively. Accordingly, we vacate the district court’s judgment which held that the school board policy was impermissible.

Plaintiff is a teen-age girl who graduated with honors from a junior high school in Philadelphia. She then applied to Central High School, a public school in the city, but was refused admission because that institution is restricted to male students. After that setback, she filed this class action in the United States District Court seeking relief … from alleged unconstitutional discrimination. After a trial, the district court granted an injunction, ordering that she and other qualified female students be admitted to Central …

The plaintiff has stipulated that “the practice of educating the sexes separately is a technique that has a long history and world-wide acceptance.” Moreover, she agrees that “there are educators who regard education in a single-sex school as a natural and reasonable educational approach.” In addition to this stipulation, the defendants presented the testimony of Dr. J. Charles Jones, an expert in the field of education. Dr. Jones expressed a belief, based on his study of New Zealand’s sex-segregated schools, that students in that educational environment had a higher regard for scholastic achievement and devoted more time to homework than those in co-ed institutions. The district judge commented that even had the parties not stipulated to the educational value of the practice, “this Court would probably have felt compelled to validate the sex-segregated school on the basis of Dr. Jones’ hypotheses concerning the competition for adolescent energies in a coed school and its detrimental effect on student learning and academic achievement” …

An analysis of the statutory language, which recognizes the background to the legislative effort, is helpful. Congress’ finding as to “the maintenance of dual school systems in which students are assigned to schools solely on the basis of race, color, sex …” should be read in the light of the policies followed by many communities to avoid racial integration. It is at least questionable that Philadelphia maintains a “dual school system” and the application of this phraseology to the case at bar is dubious …

The Act’s policy declaration is that children are entitled to “equal educational opportunity” without regard to race, color, or sex. The finding of the district court discloses no inequality in opportunity for education between Central and Girls High Schools. We cannot, therefore, find that language applicable here.

We conclude the legislation is so equivocal that it cannot control the issue in this case. Our research into the legislative history reveals no indication of Congressional intent to order that every school in the land be coeducational and that educators be denied alternatives. That drastic step should require clear and unequivocal expression. Judicial zeal for identity of educational methodology should not lead us to presume that Congress would impose such limitations upon the nationwide teaching community by equivocation or innuendo. Congress spoke clearly enough on single-sex schools in 1972 when it chose to defer action in order to secure the date needed for an intelligent judgment. We do not believe that the ambiguous wording of the Equal Educational Opportunities Act of 1974 represented an abandonment of the clearly expressed desire to wait for more information before making a decision …

We need not decide whether this case requires application of the rational or substantial relationship tests because, using either, the result is the same. We conclude that the regulations establishing admission requirements to Central and Girls High School based on gender classification do not offend the Equal Protection Clause of the United States Constitution …

GIBBONS, Circuit Judge (dissenting).

… No doubt had the issue in this case been presented to the Court at any time from 1896 to 1954, a “separate but equal” analysis would have carried the day. I was under the distinct impression, however, that “separate but equal” analysis, especially in the field of public education, passed from the fourteenth amendment jurisprudential scene over twenty years ago … The majority opinion, in establishing a twentieth-century sexual equivalent to the Plessy decision, reminds us that the doctrine can and will be invoked to support sexual discrimination in the same manner that it supported racial discrimination prior to Brown. But the resurrection of the “separate but equal” analysis is not my most serious quarrel with the majority opinion. What I find most disturbing is the majority’s deliberate disregard of an express Congressional finding that the maintenance of dual school systems in which students are assigned to schools solely on the basis of sex violates the equal protection clause of the fourteenth amendment … So long as Congress has acted within the sphere of its legislative competence in making such a finding, I submit, we are not free to substitute a “separate but equal” legislative judgment of our own. Because I conclude that Congress has acted to prohibit the maintenance of single-sex public schools pursuant to its powers under § 5 of the fourteenth amendment, I dissent from the majority’s substitution of a “separate but equal” legislative judgment. I would affirm the decision below …

Miss. Univ. for Women v. Hogan (1982)

458 U.S. 718 (1982)

Vote: 5-4
Decision: Affirmed
Majority: O’Connor, joined by Brennan, White, Marshall, Stevens
Dissent: Burger
Dissent: Blackmun
Dissent: Powell, joined by Rehnquist

JUSTICE O’CONNOR delivered the opinion of the Court.

This case presents the narrow issue of whether a state statute that excludes males from enrolling in a state-supported professional nursing school violates the Equal Protection Clause of the Fourteenth Amendment.

The facts are not in dispute. In 1884, the Mississippi Legislature created the Mississippi Industrial Institute and College for the Education of White Girls of the State of Mississippi, now the oldest state-supported all-female college in the United States … The school, known today as Mississippi University for Women (MUW), has from its inception limited its enrollment to women …

Respondent, Joe Hogan, is a registered nurse but does not hold a baccalaureate degree in nursing. Since 1974, he has worked as a nursing supervisor in a medical center in Columbus, the city in which MUW is located. In 1979, Hogan applied for admission to the MUW School of Nursing’s baccalaureate program.’ Although he was otherwise qualified, he was denied admission to the School of Nursing solely because of his sex. School officials informed him that he could audit the courses in which he was interested, but could not enroll for credit.

Hogan filed an action in the United States District Court for the Northern District of Mississippi, claiming the single sex admissions policy of MUW’s School of Nursing violated the Equal Protection Clause of the Fourteenth Amendment. Hogan sought injunctive and declaratory relief, as well as compensatory damages.

We begin our analysis aided by several firmly established principles. Because the challenged policy expressly discriminates among applicants on the basis of gender, it is subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Reed v. Reed (1971). That this statutory policy discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review. Caban v. Mohammed (1979) [other citations omitted].

Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or “protect” members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. Frontiero v. Richardson (1973) (plurality opinion).

The State’s primary justification for maintaining the single-sex admissions policy of MUW’s School of Nursing is that it compensates for discrimination against women and, therefore, constitutes educational affirmative action … As applied to the School of Nursing, we find the State’s argument unpersuasive …

It is readily apparent that a State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification …

In sharp contrast, Mississippi has made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field when the MUW School of Nursing opened its door or that women currently are deprived of such opportunities. In fact, in 1970, the year before the School of Nursing’s first class enrolled, women earned 94 percent of the nursing baccalaureate degrees conferred in Mississippi and 98.6 percent of the degrees earned nationwide … That year was not an aberration; one decade earlier, women had earned all the nursing degrees conferred in Mississippi and 98.9 percent of the degrees conferred nationwide …

Rather than compensate for discriminatory barriers faced by women, MUW’s policy of excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job …

The policy is invalid also because it fails the second part of the equal protection test, for the State has made no showing that the gender-based classification is substantially and directly related to its proposed compensatory objective. To the contrary, MUW’s policy of permitting men to attend classes as auditors fatally undermines its claim that women, at least those in the School of Nursing, are adversely affected by the presence of men …

Because we conclude that the State’s policy of excluding males from MUW’s School of Nursing violates the Equal Protection Clause of the Fourteenth Amendment, we affirm the judgment of the Court of Appeals.

It is so ordered.

U.S. v. Virginia (1996)

518 U.S. 515 (1996)

Vote: 7-1
Decision: Reversed
Majority: Ginsburg, joined by Stevens, O’Connor, Kennedy, Souter, Breyer
Concurring: Rehnquist
Dissent: Scalia
Not participating: Thomas

JUSTICE GINSBURG delivered the opinion of the Court.

In 1990, prompted by a complaint filed with the Attorney General by a female high-school student seeking admission to VMI, the United States sued the Commonwealth of Virginia and VMI, alleging that VMI’s exclusively male admission policy violated the Equal Protection Clause of the Fourteenth Amendment …

In the two years preceding the lawsuit, the District Court noted, VMI had received inquiries from 347 women, but had responded to none of them …”[S]ome women, at least,” the court said, “would want to attend the school if they had the opportunity.” … The court further recognized that, with recruitment, VMI could “achieve at least 10% female enrollment”-“a sufficient ‘critical mass’ to provide the female cadets with a positive educational experience.” … And it was also established that “some women are capable of all of the individual activities required of VMI cadets.” … In addition, experts agreed that if VMI admitted women, “the VMI ROTC experience would become a better training program from the perspective of the armed forces, because it would provide training in dealing with a mixed-gender army.” …

“Women are [indeed] denied a unique educational opportunity that is available only at VMI,” the District Court acknowledged … But “[VMI’s] single-sex status would be lost, and some aspects of the [school’s] distinctive method would be altered,” if women were admitted …”Allowance for personal privacy would have to be made,” …”[p]hysical education requirements would have to be altered, at least for the women,” … the adversative environment could not survive unmodified … Thus, “sufficient constitutional justification” had been shown, the District Court held, “for continuing [VMI’s] single-sex policy.” …

The Court of Appeals for the Fourth Circuit disagreed and vacated the District Court’s judgment. The appellate court held: “The Commonwealth of Virginia has not … advanced any state policy by which it can justify its determination, under an announced policy of diversity, to afford VMI’s unique type of program to men and not to women.”

In response to the Fourth Circuit’s ruling, Virginia proposed a parallel program for women: Virginia Women’s Institute for Leadership (VWIL). The 4-year, state-sponsored undergraduate program would be located at Mary Baldwin College, a private liberal arts school for women, and would be open, initially, to about 25 to 30 students. Although VWIL would share VMI’s mission-to produce “citizensoldiers” -the VWIL program would differ, as does Mary Baldwin College, from VMI in academic offerings, methods of education, and financial resources.

The average combined SAT score of entrants at Mary Baldwin is about 100 points lower than the score for VMI freshmen … Mary Baldwin’s faculty holds “significantly fewer Ph. D.’s than the faculty at VMI,”and receives significantly lower salaries … While VMI offers degrees in liberal arts, the sciences, and engineering, Mary Baldwin, at the time of trial, offered only bachelor of arts degrees … A VWIL student seeking to earn an engineering degree could gain one, without public support, by attending Washington University in St. Louis, Missouri, for two years, paying the required private tuition.

Experts in educating women at the college level composed the Task Force charged with designing the VWIL program; Task Force members were drawn from Mary Baldwin’s own faculty and staff … Training its attention on methods of instruction appropriate for “most women,” the Task Force determined that a military model would be “wholly inappropriate” for VWIL.

VWIL students would participate in ROTC programs and a newly established, “largely ceremonial” Virginia Corps of Cadets, … but the VWIL House would not have a military format … and VWIL would not require its students to eat meals together or to wear uniforms during the schoolday … In lieu of VMI’s adversative method, the VWIL Task Force favored “a cooperative method which reinforces self-esteem … In addition to the standard bachelor of arts program offered at Mary Baldwin, VWIL students would take courses in leadership, complete an off-campus leadership externship, participate in community service projects, and assist in arranging a speaker series.

Virginia represented that it will provide equal financial support for in-state VWIL students and VMI cadets … and the VMI Foundation agreed to supply a $5.4625 million endowment for the VWIL program … Mary Baldwin’s own endowment is about $19 million; VMI’s is $131 million … Mary Baldwin will add $35 million to its endowment based on future commitments; VMI will add $220 million … The VMI Alumni Association has developed a network of employers interested in hiring VMI graduates. The Association has agreed to open its network to VWIL graduates … but those graduates will not have the advantage afforded by a VMI degree.

Virginia returned to the District Court seeking approval of its proposed remedial plan, and the court decided the plan met the requirements of the Equal Protection Clause … A divided Court of Appeals affirmed the District Court’s judgment.

The cross-petitions in this suit present two ultimate issues. First, does Virginia’s exclusion of women from the educational opportunities provided by VMI -extraordinary opportunities for military training and civilian leadership development-deny to women “capable of all of the individual activities required of VMI cadets,” … the equal protection of the laws guaranteed by the Fourteenth Amendment? Second, if VMI’s “unique” situation … as Virginia’s sole single-sex public institution of higher education-offends the Constitution’s equal protection principle, what is the remedial requirement?

… To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State … The State must show “at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.'”The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females …

The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed “inherent differences” are no longer accepted as a ground for race or national origin classification. Loving v. Virginia (1967). Physical differences between men and women, however, are enduring: “[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.”

Measuring the record in this case against the review standard just described, we conclude that Virginia has shown no “exceedingly persuasive justification” for excluding all women from the citizen-soldier training afforded by VMI. We therefore affirm the Fourth Circuit’s initial judgment, which held that Virginia had violated the Fourteenth Amendment’s Equal Protection Clause. Because the remedy proffered by Virginia-the Mary Baldwin VWIL program-does not cure the constitutional violation, i. e., it does not provide equal opportunity, we reverse the Fourth Circuit’s final judgment in this case.

The Fourth Circuit initially held that Virginia had advanced no state policy by which it could justify, under equal protection principles, its determination “to afford VMI’s unique type of program to men and not to women.” … Virginia challenges that “liability” ruling and asserts two justifications in defense of VMI’s exclusion of women. First, the Commonwealth contends, “single-sex education provides important educational benefits,” … and the option of single-sex education contributes to “diversity in educational approaches,” … Second, the Commonwealth argues, “the unique VMI method of character development and leadership training,” the school’s adversative approach, would have to be modified were VMI to admit women … We consider these two justifications in turn.

Single-sex education affords pedagogical benefits to at least some students, Virginia emphasizes, and that reality is uncontested in this litigation. Similarly, it is not disputed that diversity among public educational institutions can serve the public good. But Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the Commonwealth … Neither recent nor distant history bears out Virginia’s alleged pursuit of diversity through single-sex educational options.

Virginia next argues that VMI’s adversative method of training provides educational benefits that cannot be made available, unmodified, to women. Alterations to accommodate women would necessarily be “radical,” so “drastic,” Virginia asserts, as to transform, indeed “destroy,” VMI’s program … Neither sex would be favored by the transformation, Virginia maintains:

Men would be deprived of the unique opportunity currently available to them; women would not gain that opportunity because their participation would “eliminat[e] the very aspects of [the] program that distinguish [VMI] from … other institutions of higher education in Virginia.”

The notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “self-fulfilling prophec[ies],” … once routinely used to deny rights or opportunities … Women’s successful entry into the federal military academies, and their participation in the Nation’s military forces, indicate that Virginia’s fears for the future of VMI may not be solidly grounded …

Virginia and VMI trained their argument on “means” rather than “end,” and thus misperceived our precedent. Single-sex education at VMI serves an “important governmental objective,” they maintained, and exclusion of women is not only “substantially related,” it is essential to that objective. By this notably circular argument, the “straightforward” test Mississippi Univ. for Women described … was bent and bowed … Virginia, in sum, “has fallen far short of establishing the ‘exceedingly persuasive justification,'” … that must be the solid base for any gender-defined classification.

In the second phase of the litigation, Virginia presented its remedial plan-maintain VMI as a male-only college and create VWIL as a separate program for women. The plan met District Court approval. The Fourth Circuit, in turn, deferentially reviewed the Commonwealth’s proposal and decided that the two single-sex programs directly served Virginia’s reasserted purposes … the Court of Appeals concluded that Virginia had arranged for men and women opportunities “sufficiently comparable” to survive equal protection evaluation … The United States challenges this “remedial” ruling as pervasively misguided.

A remedial decree, this Court has said, must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in “the position they would have occupied in the absence of [discrimination].” … A remedial decree, this Court has said, must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in “the position they would have occupied in the absence of [discrimination].” …

Virginia chose not to eliminate, but to leave untouched, VMI’s exclusionary policy. For women only, however, Virginia proposed a separate program, different in kind from VMI and unequal in tangible and intangible facilities …

VWIL affords women no opportunity to experience the rigorous military training for which VMI is famed … Virginia deliberately did not make VWIL a military institute … VWIL students thus do not experience the “barracks” life “crucial to the VMI experience,” the spartan living arrangements designed to foster an “egalitarian ethic.”

VWIL students receive their “leadership training” in seminars, externships, and speaker series … episodes and encounters lacking the “[p]hysical rigor, mental stress, … minute regulation of behavior, and indoctrination in desirable values” made hallmarks of VMI’s citizen-soldier training … Kept away from the pressures, hazards, and psychological bonding characteristic of VMI’s adversative training … VWIL students will not know the “feeling of tremendous accomplishment” commonly experienced by VMI’s successful cadets …

As earlier stated … generalizations about “the way women are,” estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description. Notably, Virginia never asserted that VMI’s method of education suits most men. It is also revealing that Virginia accounted for its failure to make the VWIL experience “the entirely militaristic experience of VMI” on the ground that VWIL “is planned for women who do not necessarily expect to pursue military careers … By that reasoning, VMI’s “entirely militaristic” program would be inappropriate for men in general or as a group, for “[o]nly about 15% of VMI cadets enter career military service.”

In myriad respects other than military training, VWIL does not qualify as VMI’s equal. VWIL’s student body, faculty, course offerings, and facilities hardly match VMI’s. Nor can the VWIL graduate anticipate the benefits associated with VMI’s 157-year history, the school’s prestige, and its influential alumni network … Mary Baldwin does not offer a VWIL student the range of curricular choices available to a VMI cadet … The VWIL student does not graduate with the advantage of a VMI degree. Her diploma does not unite her with the legions of VMI “graduates [who] have distinguished themselves” in military and civilian life …

Virginia, in sum, while maintaining VMI for men only, has failed to provide any “comparable single-gender women’s institution …

Virginia’s VWIL solution is reminiscent of the remedy Texas proposed 50 years ago, in response to a state trial court’s 1946 ruling that, given the equal protection guarantee, African-Americans could not be denied a legal education at a state facility … Reluctant to admit African-Americans to its flagship University of Texas Law School, the State set up a separate school for Heman Sweatt and other black law students … As originally opened, the new school had no independent faculty or library, and it lacked accreditation … Nevertheless, the state trial and appellate courts were satisfied that the new school offered Sweatt opportunities for the study of law “substantially equivalent to those offered by the State to white students at the University of Texas.” …

There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the “more perfect Union.”

* * *

For the reasons stated, the initial judgment of the Court of Appeals, 976 F. 2d 890 (CA4 1992), is affirmed, the final judgment of the Court of Appeals, 44 F. 3d 1229 (CA4 1995), is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.


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