CONSTITUTIONAL LAW

Sarha Rasheed
Week 13
 WEEK 13 TOPICS
  Intermediate Scrutiny
  Applying Equal Protection
 Gender based classifications
 Illegitimacy
 Sexual Orientation
 Free Speech
 Intermediate Scrutiny
 Intermediate scrutiny requires that the
government prove that the classification
at issue is substantially related to an
important state interest
 As the name implies, intermediate
scrutiny is less rigorous than strict
scrutiny, but more rigorous than
the rational basis test.
Gender-Based Classifications
 A law that classifies on the basis of
gender will be found to violate the equal
protection clause unless the law is
substantially related to an important
governmental objective.
 Unlike with rational basis review, the
governmental objective must be the
actual – not just any conceivable – state
interest.
Gender-Based Classifications
 The classification cannot rely on
“overbroad generalizations about the
different talents, capacities, or
preferences of males and females.”
 Much of the court’s gender discrimination
jurisprudence relates to employment,
benefit programs and pregnancy.
Gender-Based Classifications
 Changing attitudes towards gender based
classifications – After World War II, the
Women’s Movement compelled a re-
evaluation of the role of women in
American society and of the long-
standing attitudes toward women.
 For much of our Constitutional history,
the Supreme Court did not construe the
Equal Protection Clause as prohibiting
gender discrimination
Gender-Based Classifications
 Goesaert v. Cleary 355 U.S. 464
(1948), the court upheld a Michigan
statute prohibiting a woman from being a
bartender unless she was the wife or
daughter of the male owner of a licensed
liquor establishment. The court used a
rational standard by reasoning that the
legislature supposedly tried to shield
women from the moral and social
problems that the law was designed to
address.
Gender-Based Classifications
 Reed v. Reed 404 U.S. 71 (1971), the
court struck down a statue that preferred
males to serve as estate administrators
over equally qualified females. The state
assumed that men possessed more
business experience than women, thus
better qualifying them as estate
administrators.
Gender-Based Classifications

Craig v. Boren 429 U.S. 190 (1976), the

Court struck down an Oklahoma statute
that prohibited the sale of 3.2% beer to
males under the age of 21 and to females
under the age of 18.

Did an Oklahoma statute violate the

Fourteenth Amendment's Equal Protection
Clause by establishing different drinking
ages for men and women?
 Yes. In a 7-to-2 decision, the Court held that
the statute made unconstitutional gender
classifications. The Court held that the
statistics relied on by the state of Oklahoma
were insufficient to show a substantial
relationship between the law and the
maintenance of traffic safety.  Generalities
about the drinking habits of aggregate groups
did not suffice.
 In striking down the Oklahoma law, the Court
established a new standard for review in
gender discrimination cases – Intermediate
scrutiny.
United States v. Virginia
 United States v. Virginia
Virginia argued that "single-sex education
provides important educational benefits,”
and that the option of single-sex education
contributes to "diversity in educational
approaches." It also argued that "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.
 United States v. Virginia
Writing for the majority, Justice Ginsburg
ordered the integration of VMI. It reasoned
that there was “no persuasive evidence in
this record that VMI's male-only admission
policy is in furtherance of a state policy of
'diversity.'” it concluded that VMI’s
admissions policy was based on stereotypes
about gender. Moreover, VWIL does not
qualify as VMI’s substitute. VWI’s student
body, faculty, course offerings and facilities
do not match VMI’s.
 Illegitimacy
 Restrictions based on illegitimacy are also
subjected to intermediate scrutiny in the
Equal Protection context.
 The Court has upheld several statutes
that have afforded different treatment to
fathers and mothers of illegitimate
children.
 Parham v. Hughes
 Curtis Parham's child and the child's
mother were killed in a car accident.
Parham was never married to the child's
mother, but he signed the child's birth
certificate and provided financial support.
Parham never legitimated his child as
available under Georgia law. After the
child's death, Parham attempted to bring
a wrongful death action on behalf of his
illegitimate child.
 Parham v. Hughes
 A Georgia statute barred fathers from
bringing wrongful death actions on behalf
of illegitimate children. The trial court
held that the law violated the Due
Process and Equal Protection Clauses of
the 14th Amendment. The Supreme
Court of Georgia reversed, finding that
the classification involved was reasonably
related to legitimate state interests.
 Parham v. Hughes
 Does the Georgia statute prohibiting
biological fathers from bringing wrongful
death actions on behalf of illegitimate
children violate the Equal Protection and
Due Process Clauses of the 14th
Amendment?
 Caban v. Mohammed
 Caban v. Mohammed invalidated a
section of the New York Domestic
Relations Law that allowed an unwed
mother to block the adoption of her child
by withholding her consent, while the
unwed father could not. The distinction
between unmarried mothers and fathers
did not bear a substantial relation to the
important state interest in providing
adoptive homes for illegitimate children.

 Cuban v. Mohammad
 The Court split 5-4, with Justice Lewis F.
Powell, Jr. writing the majority opinion.
That opinion found that § 111 of New
York's Domestic Relations Law
unconstitutionally discriminated on the
basis of sex, conflicting with
the Fourteenth Amendment's guarantee
of equal protection, using
an intermediate level of judicial scrutiny.
 Lehr v. Robertson
 In Lehr v. Robertson, the Court upheld
the alternative methods of notice New
York provided to a mother and father of
an illegitimate child in an adoption
proceeding. The mother was entitled to
notice, but the father only received notice
if he had listed himself as the father, had
developed a parental relationship with
the child, or had married the mother
before the child reached six months of
age.
 Sexual Orientation
 Courts have been reluctant to apply
intermediate scrutiny to cases centered
around sexual orientation.
Bowers v. Hardwick (1986)
In Bowers, the Supreme Court considered
the constitutionality of a Georgia law that
criminalized sex between consenting adults
in a case involving two men in the home.
The majority held that the Constitution
does not confer “a fundamental right to
engage in homosexual sodomy.” In a
concurring opinion, Chief Justice Burger
quoted Blackstone’s description of
homosexual sex as an “infamous crime
against nature.”
Lawrence v. Texas (2003)
In Lawrence, the Supreme Court expressly
overruled Bowers.
Writing for the majority, Justice Kennedy
held that “[o]ur laws and tradition afford
constitutional protection to personal
decisions relating to marriage, procreation,
contraception, family relationships, child
rearing and education. . . . Persons in a
homosexual relationship may seek
autonomy for these purposes, just as
heterosexuals do.”
Compare how the “right” is characterized:
Bowers (1986) Lawrence (2003)
Fundamental right of Liberty of persons to
homosexuals to chose own intimate
engage in sodomy personal relationships