Amendment 14 — General Approach To Gender Classifications

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Fourteenth Amendment , Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of 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.

It is now established that sex classifications, in order to withstand equal protection scrutiny, “must serve important governmental objectives and must be substantially related to achievement of those objectives.” [1](https://www.law.cornell.edu/constitution-conan/amendment-14/general-approach-to-gender-classifications#fn1amd14 " Craig v. Boren, 429 U.S. 190, 197 (1976); Califano v. Goldfarb, 430 U.S. 199, 210–11 (1977) (plurality opinion); Califano v. Webster, 430 U.S. 313, 316–317 (1977); Orr v. Orr, 440 U.S. 268, 279 (1979); Caban v. Mohammed, 441 U.S. 380, 388 (1979); Mass. Pers. Adm’r v. Feeney, 442 U.S. 256, 273 (1979); Califano v. Westcott, 443 U.S. 76, 85 (1979); Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980); Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723–24 (1982). But see Michael M. v. Superior Court, 450 U.S. 464, 468–69 (1981) (plurality opinion); id. at 483 (Blackmun, J., concurring); Rostker v. Goldberg, 453 U.S. 57, 69–72 (1981). The test is the same whether women or men are disadvantaged by the classification, Orr, 440 U.S. at 279; Caban, 441 U.S. at 394; Hogan, 458 U.S. at 724, although Justice William Rehnquist and Chief Justice Warren Burger strongly argued that when males are disadvantaged only the rational basis test is appropriate. Boren, 429 U.S. at 217, 218–21; Goldfarb, 430 U.S. at 224. That adoption of a standard has not eliminated difficulty in deciding such cases should be evident by perusal of the cases following. ") Thus, after several years in which sex distinctions were more often voided than sustained without a clear statement of the standard of review,[2](https://www.law.cornell.edu/constitution-conan/amendment-14/general-approach-to-gender-classifications#fn2amd14 " In Frontiero v. Richardson, 411 U.S. 677 (1973), four Justices were prepared to hold that sex classifications are inherently suspect and must therefore be subjected to strict scrutiny. Id. at 684–87 (Brennan, Douglas, White, and Marshall, JJ.). Three Justices, reaching the same result, thought the statute failed the traditional test and declined for the moment to consider whether sex was a suspect classification, finding that inappropriate while the Equal Rights Amendment was pending. Id. at 691 (Powell and Blackmun, JJ., and Burger, C.J.). Justice Potter Stewart found the statute void under traditional scrutiny and Justice William Rehnquist dissented. Id. at 691. In Miss. Univ. for Women v. Hogan, 458 U.S. at 724 n.9, Justice Sandra Day O’Connor for the Court expressly reserved decision whether a classification that survived intermediate scrutiny would be subject to strict scrutiny. ") a majority of the Court has arrived at the intermediate standard that many had thought it was applying in any event.[3](https://www.law.cornell.edu/constitution-conan/amendment-14/general-approach-to-gender-classifications#fn3amd14 " Although their concurrences in Boren, 429 U.S. at 210, 211, indicate some reticence about express reliance on intermediate scrutiny, Justices Lewis Powell and John Paul Stevens have since joined or written opinions stating the test and applying it. E.g., Caban, 441 U.S. at 388 (Powell, J., writing the opinion of the Court); Parham v. Hughes, 441 U.S. 347, 359 (1979) (Powell, J., concurring); Goldfarb, 430 U.S. at 217 (Stevens, J., concurring); Caban, 441 U.S. at 401 (Stevens, J., dissenting). Chief Justice Warren Burger and Justice William Rehnquist had not clearly stated a test, although their deference to legislative judgment approaches the traditional scrutiny test. But see Westcott, 443 U.S. at 93 (joining Court on substantive decision). And cf. Hogan, 458 U.S. at 734–35 (Blackmun, J., dissenting). ") The Court first examines the statutory or administrative scheme to determine if the purpose or objective is permissible and, if it is, whether it is important. Then, having ascertained the actual motivation of the classification, the Court engages in a balancing test to determine how well the classification serves the end and whether a less discriminatory one would serve that end without substantial loss to the government.[4](https://www.law.cornell.edu/constitution-conan/amendment-14/general-approach-to-gender-classifications#fn4amd14 " The test is thus the same as is applied to classifications based on whether a person was born out of wedlock, although with apparently more rigor when sex is involved. ")

Some sex distinctions were seen to be based solely upon “old notions,” no longer valid if ever they were, about the respective roles of the sexes in society, and those distinctions failed to survive even traditional scrutiny. Thus, a state law defining the age of majority as eighteen for females and twenty-one for males, entitling the male child to support by his divorced father for three years longer than the female child, was deemed merely irrational, grounded as it was in the assumption of the male as the breadwinner, needing longer to prepare, and the female as suited for wife and mother.[5](https://www.law.cornell.edu/constitution-conan/amendment-14/general-approach-to-gender-classifications#fn5amd14 " Stanton v. Stanton, 421 U.S. 7 (1975). See also Stanton v. Stanton, 429 U.S. 501 (1977). Assumptions about the traditional roles of the sexes afford no basis for support of classifications under the intermediate scrutiny standard. E.g., Orr, 440 U.S. at 279–80; Parham v. Hughes, 441 U.S. 347, 355 (1979); Kirchberg v. Feenstra, 450 U.S. 455 (1981). Justice John Paul Stevens in particular was concerned whether legislative classifications by sex simply reflect traditional ways of thinking or are the result of a reasoned attempt to reach some neutral goal, e.g., Goldfarb, 430 U.S. at 222–23 (concurring), and he would sustain some otherwise impermissible distinctions if he found the legislative reasoning to approximate the latter approach. Caban, 441 U.S. at 401 (1979) (dissenting). ") Similarly, a state jury system that in effect excluded almost all women was deemed to be based upon an overbroad generalization about the role of women as a class in society, and the administrative convenience served could not justify it.[6](https://www.law.cornell.edu/constitution-conan/amendment-14/general-approach-to-gender-classifications#fn6amd14 " Taylor v. Louisiana, 419 U.S. 522 (1975). The precise basis of the decision was the Sixth Amendment right to a representative cross section of the community, but the Court dealt with and disapproved the reasoning in Hoyt v. Florida, 368 U.S. 57 (1961), in which a similar jury selection process was upheld against due process and equal protection challenge. ")

Even when the negative “stereotype” that is evoked is that of a stereotypical male, the Court has evaluated this as potential gender discrimination. In J. E. B. v. Alabama ex rel. T. B.,[7](https://www.law.cornell.edu/constitution-conan/amendment-14/general-approach-to-gender-classifications#fn7amd14 " 511 U.S. 127 (1994). ") the Court addressed a paternity suit where men had been intentionally excluded from a jury through peremptory strikes. The Court rejected as unfounded the argument that men, as a class, would be more sympathetic to the defendant, the putative father. The Court also determined that gender-based exclusion of jurors would undermine the litigants’ interest by tainting the proceedings, and in addition would harm the wrongfully excluded juror.

Assumptions about the relative positions of the sexes, however, are not without some basis in fact, and sex may sometimes be a reliable proxy for the characteristic, such as need, with which it is the legislature’s actual intention to deal. But heightened scrutiny requires evidence of the existence of the distinguishing fact and its close correspondence with the condition for which sex stands as proxy. Thus, in the case that first expressly announced the intermediate scrutiny standard, the Court struck down a state statute that prohibited the sale of “non-intoxicating” 3.2 beer to males under twenty-one and to females under eighteen.[8](https://www.law.cornell.edu/constitution-conan/amendment-14/general-approach-to-gender-classifications#fn8amd14 " Boren, 429 U.S.. ") Accepting the argument that traffic safety was an important governmental objective, the Court emphasized that sex is an often inaccurate proxy for other, more germane classifications. Taking the statistics offered by the state as of value, while cautioning that statistical analysis is a “dubious” business that is in tension with the “normative philosophy that underlies the Equal Protection Clause,” the Court thought the correlation between males and females arrested for drunk driving showed an unduly tenuous fit to allow the use of sex as a distinction.[9](https://www.law.cornell.edu/constitution-conan/amendment-14/general-approach-to-gender-classifications#fn9amd14 " Id. at 198, 199–200, 201–04. ")

Invalidating an Alabama law imposing alimony obligations upon males but not upon females, the Court in Orr v. Orr acknowledged that assisting needy spouses was a legitimate and important governmental objective. Ordinarily, therefore, the Court would have considered whether sex was a sufficiently accurate proxy for dependency, and, if it found that it was, then it would have concluded that the classification based on sex had “a fair and substantial relation to the object of the legislation.” [10](https://www.law.cornell.edu/constitution-conan/amendment-14/general-approach-to-gender-classifications#fn10amd14 " 440 U.S. at 281. ") However, the Court observed that the state already conducted individualized hearings with re