American Constitutionalism in Historical Perspective (packet)

Irrelevant to legitimate state purpose: State used gender as a proxy for likelihd to be engaged in reckless behavior, this is not a legit state purpose. No gender diffs that can explain this uneven app of the law, so this diff is cultural and should be struck down.

Do these gender classifications harm men? Yes, terrible stigma and burden on men challenging advantages of their gender. If analyzed under rational basis then would be justified on terms of traffic safety.

Mississippi School for Women v. Hogan: (1982) p.778 struck down nursing schools exclusion of men under heightened scrutiny. Found no non-sexist purpose that the seg was substantially related to achieving. This exclusion d/n meet Craig test.

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   Irrelevant to legitimate state purpose: O’Connor: Nursing is a traditionally FEMALE profession where history of discrim h/n been evident (usually have sep ed for women to remedy discrim). Believes the state may be using this classification to push women into a traditionally limited category and perpetuate gender disadvantage.
   
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   Dissent: Powell: real diffs b/w men & women that justify sep ed, and as a result these cases s/n be governed by race cases. S/n have heightened standard of review.
   

Orr v. Orr: (1979) struck down laws that authorized Alabama ct to impose alimony obligations on husbands but not wives. Applied Craig standard (intermediate scrutiny) ends were impt but means not satisfied b/c sex not reliable proxy for need. Intermediate hearings can figure out dependence issue(some men are financially dependent on women)

Gender based discrimination applies to men now

Working women deprived of benefits accorded working men (Weinberger, Califano)

1. 
   Pp. 808-09: Weinberger (Social Security) , Califano v. Goldfarb (survivors’ benefits) , Wengler (worker’s comp law and death benefits) Struck down laws that favored women; widower d/n get benefits which is disincentive to working women. She w/n get advantages for her husband that man would get for his wife if he predeceased her.
   

“Benign” uses of Gender classification (remedies past discrim against women) Affirmative action for women

1. 
   Kahn v. Shevin p.807 (1974) before Craig: upheld state law providing property tax exemption for widows and not widowers. Reasonableness scrutiny. Brennan’s dissent is now law: remedy is too broad, some classes of women d/n need help, gender s/n be proxy.
   
2. 
   Orr v. Orr; Weinberger (Social Security) , Califano v. Goldfarb (survivors’ benefits) , Wengler (worker’s comp law and death benefits) all struck down benign classification. But Califano v. Webster pp.808-09: upholds benign classification in the Social security formula for computing old age benefits which give women advantage that men d/n have and gives her more benefits. Applies intermediate scrutiny and upholds b/c remedies history of job discrimination against women in this period.
   
3. 
   Schlesinger v. Ballard, 1975: court upheld affirmative action program that provided a longer window before discharge w/out promotion for women than men. History of prejudice: women had been subject to prejudice so want to make it easier for them to get promotions. Under intermed scrutiny, women d/n have to prove past discrim.
   
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