EQUAL PROTECTION STANDARDS/TESTS

1. EQUAL PROTECTION STANDARDS/TESTS CLASS SLIDES 2/12/09

2. Maher v. Roe (1977) ISSUE: Does the Conn. welfare regulation violate the equal protection clause of the 14th amendment? NO (6-3) • What test did the court apply? • Why?

3. Maher v. Roe (1977) What test did the court apply Standard Scrutiny/Rational Basis? • Medicaid recipients who want a non-therapeutic abortion are not a suspect class • Government was not denying any fundamental right.

4. Maher v. Roe (1977) • In Roe v. Wade, the U.S. Supreme Ct. ruled that women had a fundamental right to an abortion. • How did the Maher Ct. apply Roe v. Wade? • Did it overrule, follow, or distinguish Roe v. Wade?

5. Maher v. Roe (1977) It distinguished Roe v. Wade on the grounds that it involved an absolute ban on abortion, whereas in this case the state was making it harder to get, but not imposing an absolute ban.

6. Maher v. Roe (1977) • Having established that there wasn’t a fundamental right to have the government pay for a woman’s abortion, the Ct. applied standard scrutiny. • What did it identify as the legitimate government interest for not paying for non-therapeutic abortions?

7. Maher v. Roe (1977) • That it is legitimate goal for state government to favor birth over abortion. • What was the reasoning used by the dissenters in this case?

8. Maher v. Roe (1977) Dissenting Justice Brennan, joined by Marshall and Blackmun • The constitution protects the right of abortion from state "interference," not just "absolute bars." • In Doe v. Bolton and Planned Parenthood v. Danforth the Supreme Court struck down limitations on abortions which did not involve criminal sanctions and which did not place an "absolute" bar on abortions. • Cary v. Population Services International (1977) invalidated a ban on the sale of contraceptives to minors even though it didn't forbid their use by minors.

9. SEX DISCRIMINATIONSLIDES 2/12/09

10. Definitions of Key Terms SEX: • Identification of being either male or female. • Some types of activities involving sex related parts of the body (e.g. Former President Clinton’s “I did not have sex with that woman.” GENDER • Identification of being either male or female. • Behavioral, cultural, psychological traits associated with males or females. SEX DISCRIMINATION • Actions that treat males and females differently

11. Common Law Treatment of Women In Commentaries on the Laws of England, Blackstone wrote: • By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection and cover, she performs everything.

12. Common Law Treatment of Women • The husband and wife relationship was one of reciprocal rights rather then one of equal rights. • Husband had legal duty to support the wife and children, while wife had legal duty to perform domestic chores and provide marital companionship. • Furthermore, the wife had no claim to monetary compensation for services rendered either in the home or even for work outside the home. The husband had complete legal control over the any earnings the wife might receive.

13. Bradwell v. State (1873) FACTS: Bradwell was denied a license to practice law because she was a woman. HOLDING: It is not a violation of the privileges and immunities clause of the 14th amendment for a state to limit the practice of law to males

14. Bradwell v. State (1873) Justice Bradley wrote in his concurring opinion: “...the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destines of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”

15. Average Person v. Exceptional Person Note how Justice Bradley dealt with the fact that not all women choose to be wives and/or mothers. • “It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator, and the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.”

16. Decisions Based on the Average Person v. Exceptional Person If it isn’t reasonable for state to base its laws on the “average” rather than the exceptional, does that mean we shouldn’t be able to set age limits for: • drivers’ licenses, • drinking ages, • voting ages, or • retirement ages?

17. Frontiero v. Richardson (1973) • What were the facts of this case? • What was the holding?

18. Frontiero v. Richardson (1973) PRECEDENT: • It is a violation of the due process clause of the 5th amendment for the armed services to require females to prove their spouses are dependents upon them for more than half their support before they can qualify for extra "dependents benefits," while males can collect those extra benefits without having to prove their spouses are dependent upon them for more than half their support.

19. Frontiero v. Richardson (1973) • What was the standard/test used in deciding this case?

20. Frontiero v. Richardson (1973) TEST/STANDARD USED: Although the justices split 8-1 on the constitutionality of the law, they split 4-4 as tp the standard that should be applied in sex discrimination cases. • 4 Justices (Brennan, Marshall, White and Douglas) applied Strict Scrutiny standard • 4 Justices (Powell, Burger, Blackmun and Rehnquist) applied Rational basis Standard • Crucial 5th voter, Stewart, didn’t indicate which standard he was applying because he concluded that the challenged law wouldn’t hold up under either standard.

21. Frontiero v. Richardson (1973) JUSTIFICATION FOR STRICT SCRUTINY: Justice Brennan argues “sex, like classifications based upon race, alienage, and national origin, are inherently suspect.”

22. Frontiero v. Richardson INTERPRETATION OF PRECEDENT CASES • In Frontiero v. Richardson, Justice Brennan (joined by Douglas, Marshall, and White) argues that the Reed opinion had applied strict scrutiny because it concluded that women constituted a “suspect class.” “[The Idaho statute] provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection clause.”

23. Frontiero v. Richardson DISCUSSION OF STANDARD APPLIED • On the other hand, Justice Powell (joined by Burger and Blackmun) argue that Reed • “did not add sex to the narrowly limited group of classifications which are inherently suspect.” • Quotes part of Reed opinion that the statute in question “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.”

24. Frontiero v. Richardson (1973) JUSTIFICATION FOR RATIONAL BASIS: Justice Powell’s opinion rejects use of strict scrutiny and applies rational basis because • It isn’t necessary to decide the case in Frontiero’s favor because the Air Force regulation being challenged fails the rational basis test. • The question of applying strict scrutiny should be left to the people to resolve through ratification of the Equal Rights Amendment.

25. Equal Rights Amendment • ERA discussed briefly in Box 12-3 on p. 661 in E&W. • It stated: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” • What does this wording mean to you? • What difference would passage make?

26. Equal Rights Amendment • Why do you think this amendment was proposed? • What kind of arguments were (or could be) made for passing this amendment? • What kind of arguments were (or could be) made for rejecting this amendment?

27. Equal Rights Amendment ARGUMENTS FOR ADOPTION: • Practical effect would be to help protect women from discrimination. • Stressed symbolic importance of affirming that women had equal rights under the law.

28. Equal Rights Amendment ARGUMENTS AGAINST ADOPTION: • Amendment wasn’t needed because existing laws were sufficient to protect women. • It would have negative consequences that would be bad for women and children.

29. Equal Rights Amendment ALLEGED NEGATIVE CONSEQUENCES: • women would have to give up special advantages and preferences affecting such things as: military draft, child custody preferences, alimony, etc. • it could be used to protect right to abortion • it might lead to unisex bathrooms and locker rooms

30. Equal Rights Amendment HISTORY OF AMENDMENT: • ERA passed by req. 2/3rds of House in 1971 and Senate in 1972, • ERA failed to achieve the required ratification by 3/4ths of the states.