This file was prepared for electronic distribution by the inforM staff. Questions or comments should be directed to inform-editor@umail.umd.edu. I. EXAMINATION OF EQUAL PROTECTION CASES The constitutional challenges alleging sex discrimination are based on the equal protection guarantees of the fourteenth amendment or the equal protection component of the fifth amendment. These constitutional provisions apply only to governmental action--the fourteenth amendment prohibits discriminatory actions by the states, while the fifth amendment forbids the federal government from denying persons equal protection of the law.(2) In the process of hearing and determining cases under the equal protection clause, the Supreme Court has developed different standards of review. In order to understand the significance of the level of review chosen for sex discrimination cases, an overview of all standards of review in equal protection analysis is necessary. Another consideration in addition to the standard of review applied to a governmental classification is the type of proof required by the Court to make out one's case alleging sex discrimination in violation of the Constitution. Challenges can and do arise in two situations: (1) where the classification is allegedly clearly discriminatory, i.e. shows preference for one sex over the other sex and (2) where the classification is neutral on its face, but has a discriminatory impact on an identifiable group. Over the years, the Court has had to define the burden of proof in the equal protection context required of the party contending that the government discriminated. In the facially neutral/discriminatory impact situation, the Court has had to decide whether the classification was invalid simply because it affected a greater proportion of one sex than the other or only where the government intentionally chose a particular course of action in part because of its adverse effects on a particular group. A. Explanation of the U.S. Supreme Court's Constitutional Standards of Review The Fourteenth Amendment to the Constitution provides that: ...No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; _nor deny to any person within its jurisdiction the equal protection of the laws._ U. S. Constitution, Fourteenth Amendment. (Emphasis added.) "The Fourteenth Amendment enjoins 'the equal protection of the laws,' and laws are not abstract propositions," Justice Frankfurter once wrote. "They do not relate to abstract units, A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Tigner v. Texas, 310 U.S. 141, 147 (1940). The mere fact of classification will not void legislation, then, because in the exercise of its powers a legislature has considerable discretion in recognizing the differences between and among persons and situations. "Class legislation, discriminating among some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment." Barbier v. Connolly, 113 U.S. 27, 32 (1885). Or, more succinctly, "statutes create many classifications which do not deny equal protection; it is only 'invidious discrimination' which offends the Constitution." Ferguson v. Skrupa, 372 U.S. 726, 732 (1963). Recognition of the fact that equal protection does not preclude classification, however, leads to the more difficult question of how it is that a court may determine whether a classification is proper or improper. In other words, to state it in traditional terms, does a particular classification constitute invidious discrimination? Key to this determination is the usual presumption of constitutionality which a court accords to legislative and administrative action, especially the deference a court owes to the legislative branch. To determine the propriety of a classification the Supreme Court has adopted three different levels of review. The Court has, in certain areas, employed a permissive view known as the rational basis test. This least active form of judicial review allows a classification to survive an equal protection challenge as long as the classification is rationally related to some legitimate or permissible governmental interest. Lindsley u. Natural Carbonic Gas Co., 220 U.S. 61 (1911); Royster Guano Co. u. Virginia, 253 U.S. 412 (1920); San Antonio School District u. Rodriguez, 411 U.S. 1 (1973); Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976); Maher v. Roe, 432 U.S. 464 (1977). Most classifications reviewed under this standard have survived constitutional challenge. A more active form of judicial review has also been employed by the Supreme Court. This form of review, known as strict scrutiny, has been applied in situations where there is a suspect classification (e.g. race) or a fundamental interest (e.g. marriage). E.g., Loving v. Virginia, 388 U.S. 1 (1967). In these cases the government must show there is a compelling interest necessitating that action and that the distinctions or classifications are necessary to reach the purpose sought to be furthered. See San Antonio Independent School District u. Rodriguez, 411 U.S. 1(1973). Most statutory classifications subject to strict scrutiny have been invalidated. However, even when a racial classification is used, there may be the requisite showing to sustain it. Lee v. Washington, 390 U.S. 333 (1968) (preservation of discipline and order in a jail might justify racial segregation if shown to be necessary). The Supreme Court has also adopted an intermediate level of review. This judicial review is less deferential than rational basis review and less strict and less fatal than strict scrutiny. In order to withstand constitutional challenge under this standard, a classification must "serve important governmental objectives and must be substantially related to achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197 (1976). One further point needs to be made concerning the Supreme Court's standard review analysis for challenges under the equal protection clause of the fourteenth amendment. That is, the party contending that the government discriminated has the burden of proving that there was a pretext or intent for the discrimination. The intent requirement of equal protection litigation is applicable in sex classification cases. In other words, a law which is neutral on its face and which serves ends within the power of government to pursue is not invalid simply because it may affect a greater proportion of one sex than of the other. It must be established that the decision maker selected or reaffirmed a particular course of action, at least in part because of, not merely in spite of, its adverse effects on an identifiable group. In Geduldig v. Aiello, 417 U.S. 484 (1974), the Court rejected a claim that a California income insurance plan, which excluded disability resulting from normal pregnancy, was unconstitutional because it violated the equal protection clause of the Constitution. The Court concluded that the exclusion of pregnancy was a permissible means for achieving the legitimate state purpose of maintaining a low-cost, employee supported insurance plan. The Court found that the California plan's exclusion did not amount to sex discrimination absent a showing that it was a pretext for invidious discrimination. The Supreme Court's most recent decisions interpreting Title VII of the 1964 Civil Rights Act indicates that proving intent is also required now when proving discrimination in a facially neutral context. B. Analysis of Specific Cases Under the Equal Protection Clause Between 1971 and 1976, the Supreme Court employed a number of different standards of review when it evaluated sex discrimination claims under the equal protection clause. See, e.g., Reed v. Reed, 404 U.S. 71 (1971), Frontiero v. Richardson, 411 U.S. 677 (1973), Kahn v. Shevin, 416 U.S. 351 (1974), Schlesinger v. Ballard, 419 U.S. 498 (1974), Geduldig v. Aiello, 417 U.S. 484 (1974). In 1976 the Court attempted to clear the confusion these decisions created by holding that an intermediate level of review would be used in sex discrimination cases. The Court in Craig v. Boren, 429 U.S. 190 (1976), declared unconstitutional an Oklahoma statute which involved an age-sex differentiation in the sale of 3.2 percent beer. In this case, the Court articulated the middle-tier standard of review in which the government would have to demonstrate a substantial relationship between the classification used and the goal to be achieved in order to withstand constitutional scrutiny. Thus, after Craig, there appears to be little question as to what the level of review is in the sex discrimination context. All subsequent cases heard by the Court in this area have been attempts to further redefine and clarify the middle-tier analysis. In March of 1977, the Court decided Califano v. Goldfarb, 430 U.S. 199 (1977). This case was a direct appeal from a final judgment of a three judge district court declaring 42 U.S.C. 402(f)(1)(D) unconstitutional insofar as this provision discriminated against female individuals insured under the Social Security Act and their spouses on the basis of sex. Under the Social Security Act, survivors' benefits based on the earnings of a deceased husband covered by the Act were payable to his widow regardless of dependency, but under 42 U.S.C. 402(f)(1)(D) such benefits of a deceased wife covered by the Act were payable to her widower only if he was actually receiving at least half of his support from her. In affirming the decision of the three judge district court, the Supreme Court held that the different treatment of men and women required by section 402(f)(1)(D) constituted invidious discrimination against female wage earners by affording them less protection for their surviving spouses than it provided to male employees. Justice Brennan writing the main opinion for the Court declared, ...that the gender-based differentiation created by section 402 (f) (1) (D)--that results in the efforts of female workers required to pay social security taxes producing less protection for their spouses than is produced by the efforts of men--is forbidden by the Constitution, at least when supported by no more substantial justification than "archaic and overbroad" generalizations...or "old notions"...that are more consistent with "the role-typing society has long imposed,"...than with contemporary reality. Thus section 402 (f) (1) (D) "[b]y providing dissimilar treatment for men and women who are similarly situated...violates the [Fifth Amendment]..." Goldfarb, 430 U.S. at 206-207. (citations omitted.) In Califano v. Silbowitz, 430 U.S. 924 (1977), and Califano v. Jablon, 430 U.S. 924 (1977), the Supreme Court summarily held invalid, on authority of Goldfarb, identical husbands' insurance benefit provisions in the Social Security Act also premised on one-half support requirements. The Court, also on authority of Goldfarb, summarily held invalid an identical provision of the Railroad Retirement Act in Railroad Retirement Board v. Kalina, 431 U.S. 909 (1977). These cases construing sections of the Social Security Act or identical provisions elsewhere illustrate some of the Court's first attempts to clarify the intermediate level approach to gender discrimination. In these cases the Court analyzed the legislative history to ascertain whether the stated purpose of the legislation was achieved by the means provided. For example, in Goldfarb the Court examined to a great extent the legislative history of the statute being challenged and concluded that, The only conceivable justification for writing the presumption of wives' dependency into the statute is the assumption, not verified...but based simply on "archaic and overbroad" generalizations...that it would save the Government time, money, and effort simply to pay benefits to all widows, rather than to require proof of dependency of both sexes. We...hold again here, that such assumptions do not suffice to justify a gender-based discrimination in the distribution of employment-related benefits. Id. at 217. (citations omitted.) The approach taken by the Court in Goldfarb is illustrative of the degree of scrutiny adopted by the Court in its early confrontations with gender discrimination and its intermediate review. After Califano v. Webster, 430 U.S. 313 (1977), it became apparent that some gender-based classifications could survive a constitutional challenge. In Webster, the Court held in a per curiam opinion that a former section of the Social Security Act under which retired men were treated less favorably than women in determining their old age insurance benefits was constitutional. The law challenged was 42 U.S.C. 415. Under this section of the Act, old-age insurance benefits were computed on the basis of the wage earner's "average monthly wage" earned during his "benefit computation years" which were the "elapsed years" (reduced by five) during which the wage earner's covered wages were highest. Prior to 1972 when the law was amended, "elapsed years" depended upon the sex of the wage earner. Then in 1972 Congress changed the formula to be used and specifically provided that equal treatment for the sexes be phased in over the next three years. Congress, however, chose not to make the amendment retroactive. Therefore, people who reached retirement age before the various effective dates of the changes were subject to the old formulas. As a consequence, there are still people today who are covered by the former section of the Social Security Act under which retired men received less favorable treatment than women in determining their old age insurance benefits. The Court in Webster found that the old formulas as provided for in law before 1972 were constitutional, reasoning that the disparate treatment had been purposely enacted by Congress "to compensate for particular economic disabilities suffered by women." Webster, 430 U.S. at 320. The Webster decision was significant because it revealed that the Court was still upholding gender-based differentiations in statutes if they, in fact, existed for the purpose of benefiting women who had suffered in the past from economic discrimination. The Court's opinion in Webster drew a sharp distinction between the type of male-female disparity in old age insurance benefits (Webster) and the type in the survivor's benefits dependency requirement case (Goldfarb). In the first instance, the Court felt that the purpose of the distinction was based upon outmoded stereotyping of women, e.g. the assumption that women are in fact dependent. Thus, despite the Court's intolerance of classifications based on traditional stereotypes, Webster illustrated that the Court might still accept a sex-based classification if it had been adopted by the legislature for remedial reasons.(3) In 1979, the Court continued to clarify its position on gender discrimination analysis under the equal protection clause. In Orr v. Orr, 440 U.S. 268 (1979), it declared unconstitutional an Alabama statute which imposed alimony obligations on husbands but not wives. The Court found that this impermissible sex-based classification was not remedial in nature but rather was based on traditional stereotypes. Orr reinforced the Court's position stated two years previously in Webster which prohibited any type of discrimination based on traditional stereotypes.4 Furthermore, the Court stated that if "...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." Orr, 440 U.S. at 283. After Orr, it appears clear that the intermediate standard of review is the same regardless of whether women or men are disadvantaged by the classification. Id. at 279. Tangentially related to the standard of review applied in gender-based discrimination cases are those cases concerned with illegitimacy.(5) For the purposes of this report, two Supreme Court cases dealing with illegitimacy are relevant because the fathers of illegitimate children challenged statutes treating them differently from the mothers of such children. The decisions are significant because they illustrate the difficulty the Court has faced in arriving at predictable results when applying the intermediate standard of review. In Caban v. Mohammed, 441 U.S. 380 (1979), the Court invalidated a statute because it was based on traditional sexual stereotypes. The Court found that a New York statute which required the consent of a mother, but not a father, to the adoption of an illegitimate child was based upon the traditional premise that a mother is closer to a child than a father. In a case decided on the same day, Parham v. Hughes, 441 U.S. 347 (1979), the Court upheld a Georgia statute which precluded a father who had not legitimated his child from bringing a wrongful death action on the illegitimate child's behalf. The statute did not have such a preclusion for the natural mother of an illegitimate child. The two statutory differentiations between unwed mothers and unwed fathers received different treatment because of the Court's perception of the justifications and presumptions underlying each. In Caban, a New York law permitted the unwed mother but not the unwed father of an illegitimate child to block adoption by withholding consent. Acting in the situation of one who acknowledges his parenthood and had maintained a close relationship with the child over the years, the Court could not find a substantial relationship to some important governmental interest for the classification. Promotion of adoption of the illegitimates and their consequent legitimation was important, but the Court concluded that the assumption that all unwed fathers either stood in a different relationship to their children than did the unwed mother or that the difficulty of finding the fathers would unreasonably burden the adoption process was overbroad, as the facts of the case revealed. The Court asserted that nothing prevented the State from dispensing with consent when the father was unknown or his location unknown, but disqualification of all unwed fathers could not be used as a short-cut for that step. On the other hand, in Parham, the Court upheld the Georgia law permitting the mother of an illegitimate child to sue for the wrongful death of the child but which allowed the father to sue only if he has legitimated the child and there was no mother. Discernible from the array of justices' views in Parham was that the State's objective, the avoidance of difficulties in proving paternity, was an important one which was advanced in this case by the governmental classification. The plurality opinion determined that the law did not invidiously discriminate against men as a class. Justice Powell found the statute valid because the gender-based classification was substantially related to the objective of avoiding problems of proof in verifying paternity. When a sex-specific characteristic is not an issue, the Court has reiterated its position stated in Orr. In Califano v. Wescott, 443 U.S. 76 (1979), the Court invalidated a social security provision extending benefits to families whose dependent children have been deprived of parental support because of the unemployment of the father, but not granting the same benefits when the mother becomes unemployed. The Court found that the statute was once again based on a traditional idea of women's dependence on men for support. Justice Blackmun writing for the majority asserted that the statute was, ...not substantially related to the attainment of any important and valid statutory goals. It is rather part of the baggage of sexual stereotypes...that presumes the father has the 'primary responsibility to provide a home and its essentials,'...while the other is the 'center of home and family life.' Id. at 89. (citations omitted.) The Court left little doubt that the middle-tier substantial relationship test would not tolerate any law which is based on traditional sexual stereotypes. The Court also settled another aspect of gender discrimination during 1979. In Massachusetts Personnel Administrator v. Feeney, 442 U.S. 256 (1979), the Court refused to strike down a facially neutral law which had a discriminatory effect upon women, thus revealing that the intent requirement of equal protection litigation in other areas would be equally applicable in sex classification cases. That is, a law which is neutral on its face and which serves ends within the power of government to pursue is not invalid simply because it may affect a greater proportion of one sex than of the other. Discriminatory purpose, motive, or intent must be shown. Thus, a veterans' preference law which benefitted largely but not exclusively men and which had a severe impact mostly but not exclusively upon women was held valid under the equal protection clause. Id. In Feeney, the complaining party did not show that the government intended to discriminate against women. After Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142 (1980), the Supreme Court appeared to "reach a stable ground" in its treatment of gender discrimination.(6) In Wengler, the Court invalidated a Missouri workers' compensation law denying a widower benefits on his wife's work-related death unless he was mentally or physically incapacitated or proved dependency on her earnings, but granting a widow death benefits regardless of her dependency. A majority of the Court recognized the "double-edged discrimination" against female wage earners and male beneficiaries and in doing so made it clear that, despite suggestions to the contrary in earlier cases, benign classifications (i.e. classifications benefiting women) would be subject to the same level of scrutiny as any other classification. Id. at 444. The clear language of Wengler and its firm position that the substantial relationship test should be applied in all gender discrimination cases added a degree of predictability to disputes in this area which was not present before this time. Id. During the 1980 term the Court decided three cases in the gender discrimination area. In Kirchberg v. Feenstra, 450 U.S. 455 (1981), the Supreme Court invalidated a state law giving husbands a unilateral right to dispose of jointly owned community property without a spouse's consent. Justice Marshall in a unanimous opinion applied the intermediate level substantial relationship test and found that the classification did not serve to further an important governmental interest. Id. at 461. The Court did not find appellant's argument persuasive that the woman claiming to be discriminated against could have taken some actions, such as making a "declaration by authentic act" prohibiting her husband from executing a mortgage on her home without her consent, to prevent the discriminatory treatment. Id. at 460-461. In Michael M. v. Superior Court, 450 U.S. 464 (1981), a California statute which provided for the prosecution of men but not women who engaged in sexual intercourse with a nonspousal partner under the age of eighteen was upheld after being challenged by a male. Although the statute on its face discriminated on the basis of sex, it was not invalidated because the Court ruled that in this respect males and females are not similarly situated. The Court found that since only women can become pregnant, they are deterred from sexual intercourse in a way in which men are not. It was this difference that led the Court to its decision that men could be deterred by a law applicable only to them. Also during the 1980 term, the Court decided Rostker v. Goldberg, 453 U.S. 57 (1981). In Rostker, a male challenged the Selective Service Act's exclusion of women from registration for the draft, and the Court upheld this law requiring only men to register. Again the Court found that the sexes were not similarly situated. Since the military policy of using only men in combat was not challenged, and the purpose of draft and registration was to raise a force of men for combat, the Court ruled that limiting registration to men was a valid way to serve that policy. It should also be noted that the Court has traditionally shown great deference to Congress on military matters. Rostker is an illustration of this reluctance to invalidate a decision of Congress on a military subject. Thus, while not dispositive, the military nature of the issue in Rostker may have had some impact on the Court's decision to uphold the statute. During the next term, the Court decided Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), in which it invalidated the policy of a state supported university to limit admission to its nursing school to women. In a five to four decision with the majority opinion written by Justice O'Connor, the Court applied the substantial relationship test and found unpersuasive Mississippi's claim that the purpose of the admission's policy was to compensate women for past discrimination. The Hogan Court stated that a remedial purpose would only be valid if the gender benefitted by this action was actually disadvantaged by this classification in the past. Id. at 728. Because nurses as a group had not been discriminated against, the purpose recited by Mississippi was impermissible. Id. Thus, the Hogan decision emphasizes the distinction between statutes which purport to remedy past discrimination and those which invalidly use a benign purpose as a pretext to reinforce traditional stereotypes.(7) "By reaffirming that intermediate scrutiny must be rigorously applied to all discriminatory classifications regardless of their asserted motivation, Hogan at least temporarily ensures that the language of benign discrimination cannot be used to perpetuate traditional stereotypes.(8) It is also important to note that certain language in the Hogan decision suggests that the possibility still exists that gender may be considered a suspect class. Justice O'Connor's statement that "...we need not decide whether classifications based upon gender are inherently suspect," Hogan, 458 U.S. at 724 n.9, and the language that the "exceedingly persuasive justification needed to sustain gender-based classification," Id. at 731, have opened the possibility that the Court might in the future find sex a suspect class. If this possibility were to materialize, sex discrimination cases would require the heightened strict scrutiny standard of review currently used in race cases. At the date of this writing, Hogan was the last gender discrimination case based on equal protection ruled on by the Court.(9) However during the 1983-84 term, the Supreme Court decided another gender discrimination issue in the context of the first amendment rights of freedom of association and expression. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court affirmed a Minnesota Supreme Court determination that the state's law banning discrimination in public accommodations makes it illegal for local Jaycee chapters to exclude women from full membership. The Minnesota Jaycees had claimed that forcing them to admit women would violate their first amendment rights. The Court in a unanimous decision held that under the Minnesota statute, the Jaycees would be considered a public accommodation because they were a large group which was generally not selective with respect to membership. In Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987), the Court held that a California statute did not violate the first amendment by requiring California Rotary Clubs to admit women. The reasoning in this case followed that used in the Court's earlier ruling in Jaycees. Id. at 544-545. Using the same test, the Court stated that, "In determining whether a particular association is sufficiently personal or private to warrant constitutional protection, we consider factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship." Id. at 546. Thus, the evidence needs to be weighed on a case-by-case basis. Most recently, the Supreme Court held in New York State Club Assn., Inc. v. City of New York, 108 S.Ct. 2225 (1988), that the New York City ordinance which barred business-oriented clubs from discriminating against women and minorities was not unconstitutional on its face. As in Jaycees and Rotary Club, the Court was unanimous in concluding that the law did not violate club members' first amendment right to freedom of association by forcing them to admit women or minorities. The New York City ordinance had three prongs providing that clubs are not "distinctly private" and thus are "public accommodations" if 1) they have more than 400 members; 2) they provide regular meal service; and 3) they regularly "receive payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business." Exempted from the ordinance are benevolent orders and religious corporations. The Court applied the same rationale in the New York State Club Assn.,Inc. case as it used in its two earlier decisions. This decision, however, is especially significant because numerous other cities have laws similar to the one in New York City. Because the New York law was challenged by the New York State Club Association as written and before it was actually applied in a particular instance, this recent ruling does leave some questions open. While the Court upheld the law in this facial challenge, it stated that there could be situations where the law could not be enforced against a particular private club without violating its members' first amendment right of freedom of association. Thus, the issue of how "private" a club actually is will still have to be determined on a case-by-case basis. The ruling in New York State Club Assn., Inc. did make clear that state and local governments have the authority to regulate private clubs. This decision is the Court's third in four years unanimously upholding such local government curbs against discrimination by private clubs. This survey of Supreme Court cases demonstrates the Court's attempts to clarify the analysis necessary for gender discrimination questions brought under the equal protection clause. To a certain degree, the Court has provided some predictability. For example, it is apparent that proof of intent is essential to establish a case under the equal protection clause. However, the constitutional review in the gender discrimination area is far from being completely settled. The Court likely will continue to refine and develop its middle-tier analysis in subsequent cases. Even at this time, it can still be argued that it is an open question whether the Court will accord sex the same status as race, i.e., a suspect classification, thus warranting application of the heightened standard of review, strict scrutiny, in the future. It is also evident after the Jaycees, Rotary Club, and New York State Club Assn., Inc. cases that the Court is beginning to examine gender discrimination in different constitutional contexts, thus providing new avenues for sex discrimination suits.