Macoby & Jacklin: women get pregnant and lactate, testing indicates that statistically women are more verbal than mathematical, less spatially adept, and more nurturing than men--obvious physical diffs. (The Psych of Sex Differences).
Brennan notes that these differences are irrelevant to the state’s purpose of administrative convenience, since individual evaluations would better achieve cost savings rather than broad over inclusive categories. Gender stereotype must fall to less restrictive alt, c/n use gender as proxy for dependence.
Political powerlessness: women are a political majority.
Ely gender cases are wrong because women can get their rts fully recognized thru politics (majority, permitted to vote since 1920), d/n need ct intervention.
Brennan disagrees, argues that women are underrepresented due to past practices of discrimin. Impt to distinguish actual from formal political power (women are not rep by looking at numbers in Congress). Powerlessness is derivative of prejudice, so must be interpreted in conjunction w/ above factors which depend on cultural history.
Concurrence (Powell, Blackmun) were reluctant to apply strict scrutiny, until ERA was passed and then gender would be fully as suspect as race.
Stanton v. Stanton: (1975) men were given support until age 21 but women only until age 18 struck down b/c clear disadvantage to women.
JEB v. Alabama (1994) p. 780 gender based peremptory challenges are overturned b/c perpetuates stereotypes
United States v. Virginia (VMI), 1996: p. 781 SC struck down Ct of Appeal’s solution of a separate female VMI. Court (7/1) found VMI’s exclusion of women unconst and forced them to admit them based on heightened scrutiny, req “exceedingly persuasive” justification for exclusion. Gender getting more suspect by the minute, standard is now b/w strict and heightened scrutiny. More invidious to keep out women than when kept out men in Hogan.
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