American Constitutionalism in Historical Perspective (packet)

Brennan/Stevens dissent: this is reinforcing gender stereotypes, saying women are always innocent, disavowing women’s sexual voice. Reinforcing the pedestal by desexualizing women. Also reinforcing gender stereotype that pregnancy is only about women and is a natural punishment.

Kahn v. Shevikin, 1974: upheld retirement scheme that gave higher benefits to female retirees to account for past discrimination/financial disadvantage. Probably not good law after Craig v. Boren, state may have to provide more justification to use gender as proxy

Integration in the military

1. 
   Racial integration in military: Pres order by Truman
   
   1. 
      Led to Americans thinking that AA deserved Equal Protection of the law
      
   2. 
      Military service is a central duty of citizenship. If excluded then denied as citizens
      
   3. 
      Military now most meritocratic branches of gov
      
2. 
   Gender integration in the military: Rokster says not constitutionally compelled but now as a matter of policy complete integration except for combat role (Air Force exception)
   
3. 
   Homosexuals still excluded in the military: Don’t Ask Don’t Tell. But in Europe, there is full integration of homosexuals
   

Rotsker v. Goldberg, 1981: Rehnquist court upheld mandatory conscription law’s exclusion of women. Deferential to congress, they mandated this and the court s/n question their judgment in matters of national security/military. Women c/n engage in combat anyway so can get the women you need for other jobs voluntarily.

1. 
   Potential legitimate state purpose for the combat exclusion:
   
   1. 
      Women can use pregnancy to get out of service (overinclusive)
      
   2. 
      Women are less physically strong than men: (but irrelevant w/ some jobs and modern warfare, also cultural thing that women’s sports has overcome)
      
   3. 
      Integrating women into combat units could hamper solidarity: (but excluding them could hinder their leadership opportunities; got over this w/ racial diffs)
      
2. 
   Dissent (Brennan/Marshall) wanted flexibility of determining where to place people once drafted. This is just registering, need gender neutral law to uphold public interest in strong military. But they accept female exclusion from combat.
   
   1. 
      Sexual abuse in military is not unique to women
      
   2. 
      Test score differences are NOT relevant in military context either
      
   3. 
      Fact that women are more nurturing than men is overinclusive.