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er v. Druggists Mutual Ins. Co., 446 U.S. 142, 154 (1980). Note the unanimity of the Court on the substantive issue, although it was divided on remedy, in voiding in Califano v. Westcott, 443 U.S. 76 (1979), a Social Security provision giving benefits to families with dependent children who have been deprived of parental support because of the unemployment of the father but giving no benefits when the mother is unemployed. 1731 453 U.S. 57 (1981). Joining the opinion of the Court were Justices Rehnquist, Stewart, Blackmun, Powell, and Stevens, and Chief Justice Burger. Dissenting were Justices White, Marshall, and Brennan. Id. at 83, 86. obtained for the reason for striking down the statute. The section provided that a widow was entitled to receive survivors’ benefits based on the earnings of her deceased husband, regardless of dependency, but payments were to go to the widower of a deceased wife only upon proof that he had been receiving at least half of his support from her. The plurality opinion treated the discrimination as consisting of disparate treatment of women wage-earners whose tax payments did not earn the same family protection as male wage earners’ taxes. Looking to the purpose of the benefits provision, the plurality perceived it to be protection of the familial unit rather than of the individual widow or widower and to be keyed to dependency rather than need. The sex classification was thus found to be based on an assumption of female dependency which illserved the purpose of the statute and was an ill-chosen proxy for the underlying qualification. Administrative convenience could not justify use of such a questionable proxy. 1729 Justice Stevens, concurring, accepted most of the analysis of the dissent but nonetheless came to the conclusion of invalidity. His argument was essentially that while either administrative convenience or a desire to remedy discrimination against female spouses could justify use of a sex classification, neither purpose was served by the sex classification actually used in this statute. 1730 Again, the Court divided closely when it sustained two instances of classifications claimed to constitute sex discrimination. In Rostker v. Goldberg, 1731 rejecting presidential recommendations, Congress provided for registration only of males for a possible future military draft, excluding women altogether. The Court discussed but did not explicitly choose among proffered equal protection standards, but it apparently applied the intermediate test of VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00315 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1986 AMENDMENT 14—RIGHTS GUARANTEED 1732 453 U.S. at 69-72, 78-83. The dissent argued that registered persons would fill noncombat positions as well as combat ones and that drafting women would add to women volunteers providing support for combat personnel and would free up men in other positions for combat duty. Both dissents assumed without deciding that exclusion of women from combat served important governmental interests. Id. at 83, 93. The majority’s reliance on an administrative convenience argument, it should be noted, id. at 81, was contrary to recent precedent. See supra. 1733 450 U.S. 464 (1981). Joining the opinion of the Court were Justices Rehnquist, Stewart, and Powell, and Chief Justice Burger, constituting only a plurality. Justice Blackmun concurred in a somewhat more limited opinion. Id. at 481. Dissenting were Justices Brennan, White, Marshall, and Stevens. Id. at 488, 496. 1734 450 U.S. at 470-74, 481. The dissents questioned both whether the pregnancy deterrence rationale was the purpose underlying the distinction and whether, if it was, the classification was substantially related to achievement of the goal. Id. at 488, 496. >Craig v. Boren. However, it did so in the context of its often-stated preference for extreme deference to military decisions and to congressional resolution of military decisions. Evaluating the congressional determination, the Court found that it has not been ‘‘unthinking’’ or ‘‘reflexively’’ based upon traditional notions of the differences between men and women; rather, Congress had extensively deliberated over its decision. It had found, the Court asserted, that the purpose of registration was the creation of a pool from which to draw combat troops when needed, an important and indeed compelling governmental interest, and the exclusion of women was not only ‘‘sufficiently but closely’’ related to that purpose because they were ill-suited for combat, could be excluded from combat, and registering them would be too burdensome to the military system. 1732 In Michael M. v. Superior Court, 1733 the Court did expressly adopt the Craig v. Boren intermediate standard, but its application of the test appeared to represent a departure in several respects from prior cases in which it had struck down sex classifications. Michael M. involved the constitutionality of a statute that punished males, but not females, for having sexual intercourse with a nonspousal person under 18 years of age. The plurality and the concurrence generally agreed, but with some difference of emphasis, that while the law was founded on a clear sex distinction it was justified because it did serve an important governmental interest, the prevention of teenage pregnancies. Inasmuch as women may become pregnant and men may not, women would be better deterred by that biological fact, and men needed the additional legal deterrence of a criminal penalty. Thus, the law recognized that for purposes of this classification men and women were not similarly situated, and the statute did not deny equal protection. 1734 Cases of ‘‘benign’’ discrimination, that is, statutory classifications that benefit women and disadvantage men in order to over- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00316 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1987 1735 416 U.S. 351 (1974). 1736 416 U.S. at 355. 1737 419 U.S. 498 (1975). 1738 Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975); Califano v. Goldfarb, 430 U.S. 199, 209 n.8 (1977) Orr v. Orr, 440 U.S. 268, 280–82 (1979); Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150–52 (1980). In light of the stiffened standard, Justice Stevens has called for overruling Kahn, Califano v. Goldfarb, 430 U.S. at 223–24, but Justice Blackmun would preserve that case. Orr v. Orr, 440 U.S. at 284. Cf. Regents of the Univ. of California v. Bakke, 438 U.S. 265, 302–03 (1978) (Justice Powell; less stringent standard of review for benign sex classifications). come the effects of past societal discrimination against women, have presented the Court with some difficulty. Although the first two cases were reviewed under apparently traditional rational basis scrutiny, the more recent cases appear to subject these classifications to the same intermediate standard as any other sex classification. Kahn v. Shevin 1735 upheld a state property tax exemption allowing widows but not widowers a $500 exemption. In justification, the State had presented extensive statistical data showing the substantial economic and employment disabilities of women in relation to men. The provision, the Court found, was ‘‘reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden.’’ 1736 And in Schlesinger v. Ballard, 1737 the Court sustained a provision requiring the mandatory discharge from the Navy of a male officer who has twice failed of promotion to certain levels, which in Ballard’s case meant discharge after nine years of service, whereas women officers were entitled to 13 years of service before mandatory discharge for want of promotion. The difference was held to be a rational recognition of the fact that male and female officers were dissimilarly situated and that women had far fewer promotional opportunities than men had. Although in each of these cases the Court accepted the proffered justification of remedial purpose without searching inquiry, later cases caution that ‘‘the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.’’ 1738 Rather, after specifically citing the heightened scrutiny that all sex classifications are subjected to, the Court looks to the statute and to its legislative history to ascertain that the scheme does not actually penalize women, that it was actually enacted to compensate for past discrimination, and that it does not reflect merely ‘‘archaic and overbroad generalizations’’ about women in its moving force. But where a statute is ‘‘deliberately enacted to compensate for particular economic disabilities suffered by VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00317 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1988 AMENDMENT 14—RIGHTS GUARANTEED 1739 Califano v. Webster, 430 U.S. 313, 316–18, 320 (1977). There was no doubt that the provision sustained in Webster had been adopted expressly to relieve past societal discrimination. The four Goldfarb dissenters concurred specially, finding no difference between the two provisions. Id. at 321. 1740 458 U.S. 718 (1982). Joining the opinion of the Court were Justices O’Connor, Brennan, White, Marshall, and Stevens. Dissenting were Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist. Id. at 733, 735. 1741 458 U.S. at 728. 1742 458 U.S. at 730. In addition to obligating the State to show that in fact there was existing discrimination or effects from past discrimination, the Court also appeared to take the substantial step of requiring the State ‘‘to establish that the legislature intended the single-sex policy to compensate for any perceived discrimination.’’ Id. at 730 n.16. A requirement that the proffered purpose be the actual one and that it must be shown that the legislature actually had that purpose in mind would be a notable stiffening of equal protection standards. 1743 In the major dissent, Justice Powell argued that only a rational basis standard ought to be applied to sex classifications that would ‘‘expand women’s choices,’’ but that the exclusion here satisfied intermediate review because it promoted diverwomen,’’ it serves an important governmental objective and will be sustained if it is substantially related to achievement of that objective. 1739 Many of these lines of cases converged in Mississippi University for Women v. Hogan, 1740 in which the Court stiffened and applied its standards for evaluating claimed benign distinctions benefiting women and additionally appeared to apply the intermediate standard itself more strictly. The case involved a male nurse who wished to attend a female-only nursing school located in the city in which he lived and worked; if he could not attend this particular school he would have had to commute 147 miles to another nursing school which did accept men, and he would have had difficulty doing so and retaining his job. The State defended on the basis that the female-only policy was justified as providing ‘‘educational affirmative action for females.’’ Recitation of a benign purpose, the Court said, was not alone sufficient. ‘‘[A] State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification.’’ 1741 But women did not lack opportunities to obtain training in nursing; instead they dominated the field. In the Court’s view, the state policy did not compensate for discriminatory barriers facing women, but it perpetuated the stereotype of nursing as a woman’s job. ‘‘[A]lthough the State recited a ‘benign, compensatory purpose,’ it failed to establish that the alleged objective is the actual purpose underlying the discriminatory classification.’’ 1742 Even if the classification was premised on the proffered basis, the Court concluded, it did not substantially and directly relate to the objective, because the school permitted men to audit the nursing classes and women could still be adversely affected by the presence of men. 1743 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00318 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1989 sity of educational opportunity and was premised on the belief that single-sex colleges offer ‘‘distinctive benefits’’ to society. Id. at 735, 740 (emphasis by Justice), 743. The Court noted that because the State maintained no other single-sex public university or college, the case did not present ‘‘the question of whether States can provide ‘separate but equal’ undergraduate institutions for males and females,’’ id. at 720 n.1, although Justice Powell thought the decision did preclude such institutions. Id. at 742–44. See Vorchheimer v. School Dist. of Philadelphia, 532 F. 2d 880 (3d Cir. 1976) (finding no equal protection violation in maintenance of two singlesex high schools of equal educational offerings, one for males, one for females), aff’d by an equally divided Court, 430 U.S. 703 (1977) (Justice Rehnquist not participating). 1744 United States v. Virginia, 518 U.S. 515 (1996). 1745 414 U.S. 632 (1974). Justice Powell concurred on equal protection grounds. Id. at 651. See also Turner v. Department of Employment Security, 423 U.S. 44 (1975). In a 1996 case, the Court required that a state demonstrate ‘‘exceedingly persuasive justification’’ for gender discrimination. When a female applicant challenged the exclusion of women from the historically male-only Virginia Military Institute (VMI), the State of Virginia defended the exclusion of females as essential to the nature of training at the military school. 1744 The State argued that the VMI program, which included rigorous physical training, deprivation of personal privacy, and an ‘‘adversative model’’ that featured minute regulation of behavior, would need to be unacceptably modified to facilitate the admission of women. While recognizing that women’s admission would require accommodation such as different housing assignments and physical training programs, the Court found that the reasons set forth by the State were not ‘‘exceedingly persuasive,’’ and thus the State did not meet its burden of justification. The Court also rejected the argument that a parallel program established by the State at a private women’s college served as an adequate substitute, finding that the program lacked the military-style structure found at VMI, and that it did not equal VMI in faculty, facilities, prestige or alumni network. Another area presenting some difficulty is that of the relationship of pregnancy classifications to gender discrimination. In Cleveland Board of Education v. LaFluer, 1745 a case decided upon due process grounds, two school systems requiring pregnant school teachers to leave work four and five months respectively before the expected childbirths were found to have acted arbitrarily and irrationally in establishing rules not supported by anything more weighty than administrative convenience buttressed with some possible embarrassment of the school boards in the face of pregnancy. On the other hand, the exclusion of pregnancy from a state financed program of payments to persons disabled from employment was upheld against equal protection attack as supportable by legitimate state interests in the maintenance of a self-sustaining pro- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00319 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1990 AMENDMENT 14—RIGHTS GUARANTEED 1746 Geduldig v. Aiello, 417 U.S. 484 (1974). The Court denied that the classification was based upon ‘‘gender as such.’’ Classification was on the basis of pregnancy, and while only women can become pregnant, that fact alone was not determinative. ‘‘The program divides potential recipients into two groups—pregnant woman and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.’’ Id. at 496 n.20. For a rejection of a similar attempted distinction, see Nyquist v. Mauclet, 432 U.S. 1, 9 (1977); and Trimble v. Gordon, 430 U.S. 762, 774 (1977). See also Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971). The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), now extends protection to pregnant women. 1747 The first cases set the stage for the lack of consistency. Compare Levy v. Louisiana, 391 U.S. 68 (1968), and Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73 (1968), invalidating laws which precluded wrongful death actions in cases involving the child or the mother when the child was illegitimate, in which scrutiny was strict, with Labine v. Vincent, 401 U.S. 532 (1971), involving intestate succession, in which scrutiny was rational basis, and Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), involving a workmen’s compensation statute distinguishing between legitimates and illegitimates, in which scrutiny was intermediate. 1748 Mathews v. Lucas, 427 U.S. 495, 503–06 (1976); Trimble v. Gordon, 430 U.S. 762, 766–67 (1977); Lalli v. Lalli, 439 U.S. 259, 265 (1978). Scrutiny in previous cases had ranged from negligible, Labine v. Vincent, 401 U.S. 532 (1971), to something approaching strictness, Jiminez v. Weinberger, 417 U.S. 628, 631–632 (1974). Mathews itself illustrates the uncertainty of statement, suggesting at one point that the Labine standard may be appropriate, 401 U.S. at 506, and at another that the standard appropriate to sex classifications is to be used, id. at 510, while observing a few pages earlier that illegitimacy is entitled to less exacting scrutiny than either race or sex. Id. at 506. Trimble settles on intermediate scrutiny but does not assess the relationship between its standard and the sex classification standard. See Parham v. Hughes, 441 U.S. 347 (1979), and Caban v. Mohammed, 441 U.S. 380 (1979) (both cases involving classifications reflecting both sex and illegitimacy interests). gram with rates low enough to permit the participation of low-income workers at affordable levels. 1746 The absence of supportable reasons in one case and their presence in the other may well have made the significant difference. Illegitimacy.—After wrestling in a number of cases with the question of the permissibility of governmental classifications disadvantaging illegitimates and the standard for determining which classifications are sustainable, the Court arrived at a standard difficult to state and even more difficult to apply. 1747 Although ‘‘illegitimacy is analogous in many respects to the personal characteristics that have been held to be suspect when used as the basis of statutory differentiations,’’ the analogy is ‘‘not sufficient to require ‘our most exacting scrutiny.’’’ The scrutiny to which it is entitled is intermediate, ‘‘not a toothless [scrutiny],’’ but somewhere between that accorded race and that accorded ordinary economic classifications. Basically, the standard requires a determination of a legitimate legislative aim and a careful review of how well the classification serves, or ‘‘fits,’’ the aim. 1748 The common rationale of all the illegitimacy cases is not clear, is in many respects not wholly VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00320 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1991 1749 The major inconsistency arises from three 5-to-4 decisions. Labine v. Vincent, 401 U.S. 532 (1971), was largely overruled by Trimble v. Gordon, 430 U.S. 762 (1977), which itself was substantially limited by Lalli v. Lalli, 439 U.S. 259 (1978). Justice Powell was the swing vote for different disposition of the latter two cases. Thus, while four Justices argued for stricter scrutiny and usually invalidation of such classifications, Lalli v. Lalli, 439 U.S. at 277 (Justices Brennan, White, Marshall, and Stevens dissenting), and four favor relaxed scrutiny and usually sustaining the classifications, Trimble v. Gordon, 430 U.S. at 776, 777 (Chief Justice Burger and Justices Stewart, Blackmun, and Rehnquist dissenting), Justice Powell applied his own intermediate scrutiny and selectively voided and sustained. See Lalli v. Lalli, supra, (plurality opinion by Justice Powell). 1750 A classification that absolutely distinguishes between legitimates and illegitimates is not alone subject to such review; one that distinguishes among classes of illegitimates is also subject to it, Trimble v. Gordon, 430 U.S. 762, 774 (1977), as indeed are classifications based on other factors. E.g., Nyquist v. Mauclet, 432 U.S. 1, 9 (1977) (alienage). 1751 Labine v. Vincent, 401 U.S. 532 (1971). Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 170 (1972), had confined the analysis of Labine to the area of state inheritance laws in expanding review of illegitimacy classifications. 1752 430 U.S. 762 (1977). Chief Justice Burger and Justices Stewart, Blackmun, and Rehnquist dissented, finding the statute ‘‘constitutionally indistinguishable’’ from the one sustained in Labine. Id. at 776. Justice Rehnquist also dissented separately. Id. at 777. consistent, 1749 but the theme that seems to be imposed on them by the more recent cases is that so long as the challenged statute does not so structure its conferral of rights, benefits, or detriments that some illegitimates who would otherwise qualify in terms of the statute’s legitimate purposes are disabled from participation, the imposition of greater burdens upon illegitimates or some classes of illegitimates than upon legitimates is permissible. 1750 Intestate succession rights for illegitimates has divided the Court over the entire period. At first adverting to the broad power of the States over descent of real property, the Court employed relaxed scrutiny to sustain a law denying illegitimates the right to share equally with legitimates in the estate of their common father, who had acknowledged the illegitimates but who had died intestate. 1751 Labine was strongly disapproved, however, and virtually overruled in Trimble v. Gordon, 1752 which found an equal protection violation in a statute allowing illegitimate children to inherit by intestate succession from their mothers but from their fathers only if the father had ‘‘acknowledged’’ the child and the child had been legitimated by the marriage of the parents. The father in Trimble had not acknowledged his child, and had not married the mother, but a court had determined that he was in fact the father and had ordered that he pay child support. Carefully assessing the purposes asserted to be the basis of the statutory scheme, the Court found all but one to be impermissible or inapplicable, and that one not served closely enough by the restriction. First, it was impermissible to attempt to influence the conduct of adults not to VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00321 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1992 AMENDMENT 14—RIGHTS GUARANTEED 1753 430 U.S. at 768-70. While this purpose had been alluded to in Labine v. Vincent, 401 U.S. 532, 538 (1971), it was rejected as a justification in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173, 175 (1972). Visiting consequences upon the parent appears to be permissible. Parham v. Hughes, 441 U.S. 347, 352–53 (1979). 1754 Trimble v. Gordon, 430 U.S. 762, 774–76 (1977). The Court cited the failure of the state court to rely on this purpose and its own examination of the statute. 1755 430 U.S. at 773-74. This justification had been prominent in Labine v. Vincent, 401 U.S. 532, 539 (1971), and its absence had been deemed critical in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 170–71 (1972). The Trimble Court thought this approach ‘‘somewhat of an analytical anomaly’’ and disapproved it. However, the degree to which one could conform to the statute’s requirements and the reasonableness of those requirements in relation to a legitimate purpose are prominent in Justice Powell’s reasoning in subsequent cases. Lalli v. Lalli, 439 U.S. 259, 266–74 (1978); Parham v. Hughes, 441 U.S. 347, 359 (1979) (concurring). See also Nyquist v. Mauclet, 432 U.S. 1 (1977) (alienage); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723 n.8 (1982) (sex); and compare id. at 736 (Justice Powell dissenting). 1756 Trimble v. Gordon, 430 U.S. 762, 770–73 (1977). The result is in effect a balancing one, the means-ends relationship must be a substantial one in terms of the advantages of the classification as compared to the harms of the classification means. Justice Rehnquist’s dissent is especially critical of this approach. Id. at 777, 781–86. Also not interfering with orderly administration of estates is application of Trimble in a probate proceeding ongoing at the time Trimble was decided; the fact that the death had occurred prior to Trimble was irrelevant. Reed v. Campbell, 476 U.S. 852 (1986). engage in illicit sexual activities by visiting the consequences upon the offspring. 1753 Second, the assertion that the statute mirrored the assumed intent of decedents, in that, knowing of the statute’s operation, they would have acted to counteract it through a will or otherwise, was rejected as unproved and unlikely. 1754 Third, the argument that the law presented no insurmountable barrier to illegitimates inheriting since a decedent could have left a will, married the mother, or taken steps to legitimate the child, was rejected as inapposite. 1755 Fourth, the statute did address a substantial problem, a permissible state interest, presented by the difficulties of proving paternity and avoiding spurious claims. However, the court thought the means adopted, total exclusion, did not approach the ‘‘fit’’ necessary between means and ends to survive the scrutiny appropriate to this classification. The state court was criticized for failing ‘‘to consider the possibility of a middle ground betwee

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