How has the Supreme Court addressed Fourteenth Amendment challenges alleging discrimination based on sex?

0:03Young advocate Ruth Bader Ginsburg plays a central role in litigating the cases that begin to really change the court's understanding of sex equality in the constitution. Then, much later, just as Ruth Bader Ginsburg issues the opinion in the Virginia Military Institute case FMI. But beginning in the early 1970s, initially, in the wake of the passage of the 14th Amendment, the Supreme Court seems quite disinterested in the idea that the Equal Protection Clause protects women from discrimination at all. There's a famous 1873 case Bradwell v. Illinois, in which a woman named Myra Bradwell, who has satisfied all the requirements for membership into the bar and applies to be a member to be admitted to the bar of Illinois. The Supreme Court, basically, without really seeming to be at all troubled by this suggests that there's nothing in the constitution that prevents a state from prohibiting women from membership in the bar.

0:58There's a famous or infamous concurring opinion by Justice Bradley, who writes about the paramount destiny and mission of women being to fulfill the noble and benign offices of wife and mother, and suggests that this is the law of the creator, whatever the constitution and the laws of the United States say. That's the concurring opinion, not the court's opinion, but it really captures, I think the view of the court and the dismissive way the Supreme Court responded to claims on the constitution for sex equality for at least the early decades following the passage of the 14th Amendment. But then comes Ruth Bader Ginsburg. In the early 1970s, she is involved with, and herself is the lead litigator in a number of cases that really begin to chip away brick by brick at formal legal inequality on the basis of sex.

1:48Young Ruth Bader Ginsburg is actually a law professor and the head of the ACLU then new Women's Rights project. In the course of teaching a law school class on sex equality in the law, she and her students put together essentially a compendium of laws that draw distinctions on the basis of sex. Most of them operate to the disadvantage of women. Some of them, it turns out, operate to the disadvantage of men. But across the statute books, both state and federal and every state in the country, there are laws that draw distinctions on the basis of sex and she sets out to challenge these laws. She's incredibly strategic about which of these laws she and her team challenge, and in what ways, and in what order? The first of these cases, Reed v. Reed actually doesn't argue herself, but it involves an equal protection challenge,

2:35so it's a challenge brought under the 14th Amendment to a law in the state of Idaho that essentially prefers men to women whenever there's a dispute about who's going to be the administrator of an estate. This is an individual who dies and whose parents each wish to be the administrator of the estate. Again, the law gives an automatic preference to the man when there are two people who are otherwise, identically qualified to be administrator. With an assistant from an Amicus brief by then Ruth Bader Ginsburg, the court finds that that law does not have a rational basis to support it. The court does not announce any special rule for the review of laws that draw distinctions on the basis of sex, but does say, there isn't any rational reason to prefer men categorically to women in deciding who's going to be the administrator of an estate. This is an important sort of first step.

3:25A really important next step is a case that Ginsburg herself does argue, and that's in 1973, and that's Frontiero v. Richardson. That's a case involving, again, one of the hundreds if not thousands of these laws that draw distinctions on the basis of sex. In this instance, this is a federal law that applies to members of the armed forces. It gives an automatic dependent benefit to the wives of service members, but not to the husbands of service members. You can get a benefit if you are a woman and have a husband who's a dependent if you're in the service, but you have to go through an arduous process to establish your eligibility for that benefit. Sharon Francio is an air force lieutenant who has a husband, who she thinks should qualify for a dependent benefit, exactly as an identically situated lieutenant who had

4:10a wife would and yet she's unable to qualify for this benefit. She challenges this denial. the court comes very close to announcing a rule under which laws that draw distinctions on the basis of sex would be subject to strict scrutiny, just as are laws that draw distinctions on the basis of race. You actually have four justices who agree that this law and laws like it should be subject to strict scrutiny, but there are nine members of the Supreme Court, and to have a majority, you need five. Four is a world away from five when it comes to setting down the law and so you have what's called a plurality opinion. Again, a minority, an important group, but not enough to make it the law who say that strict scrutiny should apply, and a fifth vote that is unwilling to go along with announcing strict scrutiny in cases that involve sex classifications or sex discrimination.

5:02There are other cases in the early 1970s. Some of them, again, involving not women as plaintiffs, as Frontiero did, but men as plaintiffs. There's a case called Weisenfeld, that was a case that Ginsburg brought that involved an individual whose wife died in childbirth who was left to raise their child and whose wife had during her working years, paid into Social Security account that would have entitled a surviving widow to Social Security benefits, but the law again, drew a sex based distinction so that he as a surviving widower, was ineligible for the benefits. He filed a lawsuit that was successful. The key case that announces the standard that going forward will apply to laws that draw distinctions on the basis of sex is Craig v. Boren, which is a 1976 case that also involves a law that arguably discriminates against men in the classification that it draws. This is a law, a state law that basically makes young women at the age of 18,

6:02able to buy what was referred to in the case as near beer. It's like a low alcohol content 3.2% beer, but young men could not buy that product until they were 21. The law treated men and women differently. The challenge was on behalf of some actually a saloon owner, but the argument was, this disadvantaged men. It treated them differently from women. There the court both agreed that the law was impermissible and actually arrived at the standard of scrutiny that it would apply to laws that draw distinctions on the basis of sex. It announced a standard that are called intermediate scrutiny so not rational basis review. But not the same very surging constitutional strict scrutiny that it would apply to laws that drew distinctions on the basis of race. Something in between. What the court said was, in order if government is

6:51trying to defend distinction on the basis of sex, it needs to identify an important government interest, so not compelling but important. The court that needs to be essentially reasonably tailored. The law need not be as narrowly tailored in the same way that a strict scrutiny review would require, but the law needs to be reasonably necessary to advance the important government interests.

7:13This is essentially halfway point between rational basis review and strict scrutiny may be a little closer to strict scrutiny. Essentially the idea then gets developed a little bit more in later cases, and we can talk about the VMI case is that there may be circumstances in which differential treatment of men and women may be justified in a way the differential treatment of individuals on the basis of race can essentially never be. Fast forwarding to the VMI case, which is a case that Justice Ginsburg solved in the intervening years. This campaign results in an announced heightened constitutional scrutiny being applied to sex classifications, not strict scrutiny, but intermediate scrutiny. Ginsburg is later appointed by President Clinton to the Supreme Court. While she's on the court, she decides an important case that essentially does further fleshing out of this idea of intermediate scrutiny. This is a case involving a sex segregated military academy,

8:06the Virginia military Institute that only admitted men and used what it described as this distinctive adversative method of quasi military training, people would sleep in barracks, and there was uniforms, intense, and rigorous physical training. The school said we could not possibly sustain that environment if we admitted women, as well as men. The Supreme Court, using this intermediate scrutiny in an opinion by Justice Ginsburg held that that exclusionary admissions policy used by the Virginia military Institute did not survive constitutional scrutiny, essentially, use this idea of intermediate scrutiny, formulated in a couple of parts of the opinion in a slightly different way, which was basically to say that in order to justify a law that discriminates like this one does. This law said no female applicants could ever be admitted,

8:58the government needs to come forward with an exceedingly persuasive justification. If it can't do that, then the law or the scheme or the classification has to fall. Here, Justice Ginsburg for the court concluded that there simply wasn't a persuasive case made that the school would not be able to retain the core features of its distinctive pedagogical philosophy if it admitted women, that it could find a way to preserve what was distinct about it, but also open up its admissions.

9:28I should say in the interim during the pendency of the litigation, the school actually had attempted to set up an alternative institution that it said would have served essentially the same function and would have admitted, it would have been a sex segregated institution, just for young women. But it was pretty clear to the Supreme Court that those were not remotely comparable institutions.

9:50The court said that's not a way to comply with constitutional obligations, rather, admissions need to be open to all. Sure, probably not all or the vast majority of young women are going to be interested in the method that is used at BMI, but the law cannot rest on an assumption that there are no qualified young women who might wish to pursue this education. The sex segregated admission scheme had to fall. This is true. In the earlier cases from the 1970s as well, just one more point to make is that the argument that Ginsburg was making throughout as a young litigator arguing and mostly winning these cases was that these schemes that drew distinctions between men and women that were predicated on this idea that men belonged in the sphere of work and bread winning and women belonged in the domestic sphere, that those stereotypes hurt everyone, that they stymied and stifled everyone's opportunity.

10:49They kept women from actually competing in the worlds of education and employment, and they kept men from fully being present as caregivers, if they wish to pursue parts of their lives or all of their lives as caregivers and. These laws essentially kept everyone in boxes and that the law was not justified in doing that. The argument was framed in one that was like, really, pretty radically egalitarian. It was the women's rights project, and it was about, again, dismantling laws that burden women in all kinds of ways. But I think her argument throughout was that these stereotypes hurt everyone.