American Constitutionalism in Historical Perspective (packet)

Invidious discrimination

1. 
   Burden on women as a class: probably struck down (Reed, Frontiero, Stanton, VMI)
   
   1. 
      D/n recognize women yet as a suspect class. Goesart v. Cleary, 1948: court upheld Michigan law the prohibited women from getting bartenders licenses unless they were supervised by a man. Was brought as claim b/c during WWII, women worked and after the war wanted to stay working. Deference to legislature after Lochner and saw this as an economic issue, not involving fundamental rights.
      
   2. 
      Mark of shift in Reed v. Reed, 1971: court struck down a law that prohibited women from administering estates under rational basis analysis. This would have had a rational basis under Goesart (lack of women’s experience in this area) the court is raising the standard though purporting to use rational basis analysis. (Richards).
      
   3. 
      Frontiero v. Richardson, 1973 (follows Reed but no longer good law after Craig): p.773 the court strikes down a military benefits policy req women officers to prove that their spouses are dependent in order to receive benefits, while male officers are not required to so prove. The court announces that gender is as suspect as race and applies strict scrutiny. GENDER IS AS SUSPECT AS RACE
      
      1. 
         Immutability: gender is generally an immutable characteristic.
         
      2. 
         Salient: very conspicuous (can tell if person is a man or a woman)
         
      3. 
         History of prejudice: cultural history of treating women differently, pedestal idealization has a dark side, women have been denied free speech, rt to intimate life, and to work.
         
      4. 
         Irrelevant to legitimate state purpose: there are gender diffs but not relevant to ability to perform. Skeptic of weight given to gender diffs by culture.
         
         1.