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The first successful challenge to a sex classification came in 1971, in Reed v Reed. The Court struck down an Idaho law designating the male offspring as the adminstrator of the estate when none is specified in the will. The Court concluded that the law lacked a rational basis. Two years later, in Frontiero v Richardson, a regulation allowing male members of the military to automatically claim their spouses as dependents, but requiring female members of the military to prove the dependency of their spouses was struck down. Four members of the Frontiero Court applied strict scrutiny, but other justices rejected that approach, arguing that the pendency of the Equal Rights Amendment was a factor in their decision. It being widely assumed that the effect of the ERA would be to compel application of a strict scrutiny test to sex classifications, several Court members suggested the appropriateness of waiting for the constitutional amendment process to work its course. Ultimately, the ERA fell three states short of ratification, largely over such concerns as mixed sex bathrooms and women being put in combat positions. The Court finally settled on an intermediate scrutiny (important state interest and substantially related means) approach in Craig v Boren, invalidating a law that banned the sale of 3.2% beer to 18 to 20-year-old males, while allowing purchase by females of the same age. The same test resulted in a decision in 1981 upholding a California law that allowed males, but not females, to be charged with statutory rape (Michael M. v. Superior Court). Taken together, the two cases suggest the unpredictability of the intermediate scrutiny test used by the Court. Cases
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Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification. The statute passed by Congress in March, 1972 proposing the amendment provided that ratifications must occur within seven years. Thirty-five states out of the thirty-eight needed had ratified by 1978. Congress extended the deadline for ratification to June 30, 1982, but still the amendment failed to achieve the necessary thirty-eight ratifications. 
Questions 2. What are the arguments for and against applying heightened judicial scrutiny to classifications disadvantaging women? To classifications disadvantaging men? 3. What are some of the real differences between men and women that may legitimately be the basis for a legislative classification based on sex? 4. Should the ERA have been adopted? What gender-based classifications would become unconstitutional if it had been adopted? Would a ban on women in combat positions be unconstitutional? Would bathrooms segregated by sex be unconstitutional? Would it be unconstitutional to punish female topless bathers, but not male topless bathers? 5. How do you explain the fact that many polls in the 1970s showed greater support for the ERA among males than among females? 6. Is the Court's approach of using intermediate scrutiny to review gender classifications a sound one? What problems to you see with the Court's approach? 7. What options were open to the Oklahoma legislature after the Court invalidated the sex classification in its beer law? 7. Do you agree that the sex classification in California's statutory rape law challenged in Michael M. was supported by an important state interest and the the classification was substantially related to that interest? |
