Gender Discrimination

Equal Protection Clause and Gender Discrimination

History:

-1971, the first time the Court invalidates a Gender Classification
-What Scrutiny?
-Reasons for Strict Scrutiny, long history of discrimination of women, usually based on stereotypes, gender is an immutable characteristic, also a visual characteristic, and under representation in the political process
-Reasons for Intermediate Scrutiny, framer's intent, women are a political majority; if there was Strict Scrutiny it would be harder to uphold affirmative action laws for women.
-1872, Court upheld Illinois State law that prohibited women from practicing law
-1908, Court upheld Oregon law limiting the hours women could work in factories (what about Lochner, only 3 years later)
-1928, Court upheld NY law that prohibited women from working graveyard shifts in restaurants
-1923 and 1937, Court flip flops and upholds a minimum wage law for women
-1948, Court upheld a Michigan law that prohibits women as bartenders unless they are the wife or daughter of the owner
-1961, Court upheld a Florida law where women were exempted from jury duty unless they waived it, men were not given this exemption
-1971, Court invalidated an Idaho law that preferred men over women in selecting administrators of estates, but it used Rational Basis review.

Present:

-The Court uses Intermediate Scrutiny for challenges to laws that discriminate based on gender.
-Gender is a Quasi-Suspect Class and is on the second tier of the Equal Protection Pyramid
-Test for Intermediate Scrutiny, the law must be substantially related to an important state interest, the burden of proof is on the government to show the law is valid and the government is given no deference because gender is a quasi-suspect class