CHAPTER FIVE: Nonracial Classifications and Equal Protection – Part 1

I. Rational Basis Standard as Default

Railway Express Agency, Inc. v. New York

336 U.S. 106 (1949)

Justice Douglas delivered the opinion of the Court, in which Vinson, Black, Frankfurter, Murphy, Jackson, and Burton, JJ, joined. Rutledge, J., issued a brief concurring opinion. Jackson, J., issued a concurring opinion.
Mr. Justice Douglas delivered the opinion of the Court.

Section 124 of the Traffic Regulations of the City of New York promulgated by the Police Commissioner provides:

‘No person shall operate, or cause to be operated, in or upon any street an advertising vehicle; provided that nothing herein contained shall prevent the putting of business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner and not used merely or mainly for advertising.’

Appellant is engaged in a nation-wide express business. It operates about 1,900 trucks in New York City and sells the space on the exterior sides of these trucks for advertising. That advertising is for the most part unconnected with its own business. It was convicted in the magistrates court and fined. The judgment of conviction was sustained in the Court of Special Sessions. The Court of Appeals affirmed without opinion by a divided vote. The case is here on appeal.

* * * * {On the due process challenge, the Court stated:} We do not sit to weigh evidence on the due process issue in order to determine whether the regulation is sound or appropriate; nor is it our function to pass judgment on its wisdom. We would be trespassing on one of the most intensely local and specialized of all municipal problems if we held that this regulation had no relation to the traffic problem of New York City. It is the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be palpably false.

The question of equal protection of the laws is pressed more strenuously on us. It is pointed out that the regulation draws the line between advertisements of products sold by the owner of the truck and general advertisements. It is argued that unequal treatment on the basis of such a distinction is not justified by the aim and purpose of the regulation. It is said, for example, that one of appellant’s trucks carrying the advertisement of a commercial house would not cause any greater distraction of pedestrians and vehicle drivers than if the commercial house carried the same advertisement on its own truck. Yet the regulation allows the latter to do what the former is forbidden from doing. It is therefore contended that the classification which the regulation makes has no relation to the traffic problem since a violation turns not on what kind of advertisements are carried on trucks but on whose trucks they are carried.

That, however, is a superficial way of analyzing the problem, even if we assume that it is premised on the correct construction of the regulation. The local authorities may well have concluded that those who advertised their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use. It would take a degree of omniscience which we lack to say that such is not the case. If that judgment is correct, the advertising displays that are exempt have less incidence on traffic than those of appellants.

We cannot say that that judgment is not an allowable one. Yet if it is, the classification has relation to the purpose for which it is made and does not contain the kind of discrimination against which the Equal Protection Clause affords protection. It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered. And the fact that New York City sees fit to eliminate from traffic this kind of distraction but does not touch what may be even greater ones in a different category, such as the vivid displays on Times Square, is immaterial. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all. * * * *


Mr. Justice Rutledge acquiesces in the Court’s opinion and judgment, dubitante on the question of equal protection of the laws.

Mr. Justice Jackson, concurring.

There are two clauses of the Fourteenth Amendment which this Court may invoke to invalidate ordinances by which municipal governments seek to solve their local problems. One says that no state shall ‘deprive any person of life, liberty, or property, without due process of law’. The other declares that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’

My philosophy as to the relative readiness with which we should resort to these two clauses is almost diametrically opposed to the philosophy which prevails on this Court. While claims of denial of equal protection are frequently asserted, they are rarely sustained. But the Court frequently uses the due process clause to strike down measures taken by municipalities to deal with activities in their streets and public places which the local authorities consider to create hazards, annoyances or discomforts to their inhabitants. And I have frequently dissented when I thought local power was improperly denied.

The burden should rest heavily upon one who would persuade us to use the due process clause to strike down a substantive law or ordinance. Even its provident use against municipal regulations frequently disables all government—state, municipal and federal from dealing with the conduct in question because the requirement of due process is also applicable to State and Federal Governments. Invalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable.

Invocation of the equal protection clause, on the other hand, does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact. I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.

This case affords an illustration. Even casual observations from the sidewalks of New York will show that an ordinance which would forbid all advertising on vehicles would run into conflict with many interests, including some, if not all, of the great metropolitan newspapers, which use that advertising extensively. Their blandishment of the latest sensations is not less a cause of diverted attention and traffic hazard than the commonplace cigarette advertisement which this truck-owner is forbidden to display. But any regulation applicable to all such advertising would require much clearer justification in local conditions to enable its enactment than does some regulation applicable to a few. I do not mention this to criticize the motives of those who enacted this ordinance, but it dramatizes the point that we are much more likely to find arbitrariness in the regulation of the few than of the many. Hence, for my part, I am more receptive to attack on local ordinances for denial of equal protection than for denial of due process, while the Court has more often used the latter clause.

In this case, if the City of New York should assume that display of any advertising on vehicles tends and intends to distract the attention of persons using the highways and to increase the dangers of its traffic, I should think it fully within its constitutional powers to forbid it all. The same would be true if the City should undertake to eliminate or minimize the hazard by any generally applicable restraint, such as limiting the size, color, shape or perhaps to some extent the contents of vehicular advertising. Instead of such general regulation of advertising, however, the City seeks to reduce the hazard only by saying that while some may, others may not exhibit such appeals. The same display, for example, advertising cigarettes, which this appellant is forbidden to carry on its trucks, may be carried on the trucks of a cigarette dealer and might on the trucks of this appellant if it dealt in cigarettes. And almost an identical advertisement, certainly one of equal size, shape, color and appearance, may be carried by this appellant if it proclaims its own offer to transport cigarettes. But it may not be carried so long as the message is not its own but a cigarette dealer’s offer to sell the same cigarettes.

The City urges that this applies equally to all persons of a permissible classification, because all that it does is (1) forbid all inhabitants of New York City from engaging in the business of selling advertising space on trucks which move as part of the city traffic; (2) forbid all truck owners from incidentally employing their vehicles for such purpose, with the exception that all truck owners can advertise their own business on their own trucks. It is argued that, while this does not eliminate vehicular advertising, it does eliminate such advertising for hire and to this extent cuts down the hazard sought to be controlled.

That the difference between carrying on any business for hire and engaging in the same activity on one’s own is a sufficient one to sustain some types of regulations of the one that is not applied to the other, is almost elementary. But it is usual to find such regulations applied to the very incidents wherein the two classes present different problems, such as in charges, liability and quality of service.

The difference, however, is invoked here to sustain a discrimination in a problem in which the two classes present identical dangers. The courts of New York have declared that the sole nature and purpose of the regulation before us is to reduce traffic hazards. There is not even a pretense here that the traffic hazard created by the advertising which is forbidden is in any manner or degree more hazardous than that which is permitted. It is urged with considerable force that this local regulation does not comply with the equal protection clause because it applies unequally upon classes whose differentiation is in no way relevant to the objects of the regulation.

As a matter of principle and in view of my attitude toward the equal protection clause, I do not think differences of treatment under law should be approved on classification because of differences unrelated to the legislative purpose. The equal protection clause ceases to assure either equality or protection if it is avoided by any conceivable difference that can be pointed out between those bound and those left free. This Court has often announced the principle that the differentiation must have an appropriate relation to the object of the legislation or ordinance. * * * *

The question in my mind comes to this. Where individuals contribute to an evil or danger in the same way and to the same degree, may those who do so for hire be prohibited, while those who do so for their own commercial ends but not for hire be allowed to continue? I think the answer has to be that the hireling may be put in a class by himself and may be dealt with differently than those who act on their own. But this is not merely because such a discrimination will enable the lawmaker to diminish the evil. That might be done by many classifications, which I should think wholly unsustainable. It is rather because there is a real difference between doing in self-interest and doing for hire, so that it is one thing to tolerate action from those who act on their own and it is another thing to permit the same action to be promoted for a price.

* * * * Of course, this appellant did not hold itself out to carry or display everybody’s advertising, and its rental of space on the sides of its trucks was only incidental to the main business which brought its trucks into the streets. But it is not difficult to see that, in a day of extravagant advertising more or less subsidized by tax deduction, the rental of truck space could become an obnoxious enterprise. While I do not think highly of this type of regulation, that is not my business, and in view of the control I would concede to cities to protect citizens in quiet and orderly use for their proper purposes of the highways and public places, I think the judgment below must be affirmed.


Dandridge v Williams

397 U.S. 471 (1970)

Justice Stewart delivered the opinion of the Court in which Burger, C.J., and Black, Harlan, and White, JJ joined. Black., J. issued a concurring opinion in which Burger, C.J., joined. Harlan, J., issued a concurring opinion. Douglas., J., issued a dissenting opinion, in which Brennan, J., joined. Marshall, J., issued a dissenting opinion, in which Brennan, J., joined.
Mr. Justice Stewart delivered the opinion of the Court.

This case involves the validity of a method used by Maryland, in the administration of an aspect of its public welfare program, to reconcile the demands of its needy citizens with the finite resources available to meet those demands. Like every other State in the Union, Maryland participates in the Federal Aid to Families with Dependent Children (AFDC) program, 42 U.S.C. § 601 et seq. (1964 ed. and Supp. IV), which originated with the Social Security Act of 1935.

Under this jointly financed program, a State computes the so-called “standard of need” of each eligible family unit within its borders. Some States provide that every family shall receive grants sufficient to meet fully the determined standard of need. Other States provide that each family unit shall receive a percentage of the determined need. Still others provide grants to most families in full accord with the ascertained standard of need, but impose an upper limit on the total amount of money any one family unit may receive. Maryland, through administrative adoption of a “maximum grant regulation,” has followed this last course. This suit was brought by several AFDC recipients to enjoin the application of the Maryland maximum grant regulation on the ground that it is in conflict with the Social Security Act of 1935 and with the Equal Protection Clause of the Fourteenth Amendment.

* * * *

The operation of the Maryland welfare system is not complex. By statute, the State participates in the AFDC program. It computes the standard of need for each eligible family based on the number of children in the family and the circumstances under which the family lives. In general, the standard of need increases with each additional person in the household, but the increments become proportionately smaller. The regulation here in issue imposes upon the grant that any single family may receive an upper limit of $250 per month in certain counties and Baltimore City, and of $240 per month elsewhere in the State. The appellees all have large families, so that their standards of need, as computed by the State, substantially exceed the maximum grants that they actually receive under the regulation. The appellees urged in the District Court that the maximum grant limitation operates to discriminate against them merely because of the size of their families, in violation of the Equal Protection Clause of the Fourteenth Amendment. They claimed further that the regulation is incompatible with the purpose of the Social Security Act of 1935, as well as in conflict with its explicit provisions.

In its original opinion, the District Court held that the Maryland regulation does conflict with the federal statute, and also concluded that it violates the Fourteenth Amendment’s equal protection guarantee. After reconsideration on motion, the court issued a new opinion resting its determination of the regulation’s invalidity entirely on the constitutional ground. Both the statutory and constitutional issues have been fully briefed and argued here, and the judgment of the District Court must, of course, be affirmed if the Maryland regulation is in conflict with either the federal statute or the Constitution. We consider the statutory question first, because, if the appellees’ position on this question is correct, there is no occasion to reach the constitutional issues. Ashwander v. TVA (1936) (Brandeis, J., concurring).


{The Court found that the Maryland statute did not conflict with the Social Security Act}


Although a State may adopt a maximum grant system in allocating its funds available for AFDC payments without violating the Act, it may not, of course, impose a regime of invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Maryland says that its maximum grant regulation is wholly free of any invidiously discriminatory purpose or effect, and that the regulation is rationally supportable on at least four entirely valid grounds. The regulation can be clearly justified, Maryland argues, in terms of legitimate state interests in encouraging gainful employment, in maintaining an equitable balance in economic status as between welfare families and those supported by a wage-earner, in providing incentives for family planning, and in allocating available public funds in such a way as fully to meet the needs of the largest possible number of families. The District Court, while apparently recognizing the validity of at least some of these state concerns, nonetheless held that the regulation “is invalid on its face for overreaching,”—that it violates the Equal Protection Clause “[b]ecause it cuts too broad a swath on an indiscriminate basis as applied to the entire group of AFDC eligibles to which it purports to apply. . . .” * * * * {T}he concept of “overreaching” has no place in this case. For here we deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights, and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare payments to the largest AFDC families. For this Court to approve the invalidation of state economic or social regulation as “overreaching” would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws “because they may be unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical Co. (1955). That era long ago passed into history.

In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.”

The problems of government are practical ones, and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific. “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”

To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have, in the main, involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard. It is a standard that has consistently been applied to State legislation restricting the availability of employment opportunities. And it is a standard that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.

Under this long-established meaning of the Equal Protection Clause, it is clear that the Maryland maximum grant regulation is constitutionally valid. We need not explore all the reasons that the State advances in justification of the regulation. It is enough that a solid foundation for the regulation can be found in the State’s legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor. By combining a limit on the recipient’s grant with permission to retain money earned, without reduction in the amount of the grant, Maryland provides an incentive to seek gainful employment. And by keying the maximum family AFDC grants to the minimum wage a steadily employed head of a household receives, the State maintains some semblance of an equitable balance between families on welfare and those supported by an employed breadwinner.

It is true that, in some AFDC families, there may be no person who is employable. It is also true that with respect to AFDC families whose determined standard of need is below the regulatory maximum, and who therefore receive grants equal to the determined standard, the employment incentive is absent. But the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. It is enough that the State’s action be rationally based and free from invidious discrimination. The regulation before us meets that test.

We do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social and economic objectives that Maryland might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. * * * *

The judgment is reversed.

Mr. Justice Marshall, whom Mr. Justice Brennan joins, dissenting.

* * * * In the final analysis, Maryland has set up an AFDC program structured to calculate and pay the minimum standard of need to dependent children. Having set up that program, however, the State denies some of those needy children the minimum subsistence standard of living, and it does so on the wholly arbitrary basis that they happen to be members of large families. One need not speculate too far on the actual reason for the regulation, for in the early stages of this litigation the State virtually conceded that it set out to limit the total cost of the program along the path of least resistance. Now, however, we are told that other rationales can be manufactured to support the regulation and to sustain it against a fundamental constitutional challenge.

However, these asserted state interests, which are not insignificant in themselves, are advanced either not at all or by complete accident by the maximum grant regulation. Clearly they could be served by measures far less destructive of the individual interests at stake. Moreover, the device assertedly chosen to further them is at one and the same time both grossly underinclusive-because it does not apply at all to a much larger class in an equal position-and grossly overinclusive-because it applies so strongly against a substantial class as to which it can rationally serve no end. Were this a case of pure business regulation, these defects would place it beyond what has heretofore seemed a borderline case, see, e.g., Railway Express Agency v. New York (1949), and I do not believe that the regulation can be sustained even under the Court’s ‘reasonableness’ test.

In any event, it cannot suffice merely to invoke the spectre of the past and to recite from * * * * and Williamson v. Lee Optical of Oklahoma, Inc. to decide the case. Appellees are not a gas company or an optical dispenser; they are needy dependent children and families who are discriminated against by the State. The basis of that discrimination-the classification of individuals into large and small families-is too arbitrary and too unconnected to the asserted rationale, the impact on those discriminated against-the denial of even a subsistence existence-too great, and the supposed interests served too contrived and attenuated to meet the requirements of the Constitution. In my view Maryland’s maximum grant regulation is invalid under the Equal Protection Clause of the Fourteenth Amendment.

Mr. Justice Douglas, dissenting {omitted}{arguing that Maryland scheme is invalid under federal Social Security Act}.
Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting {omitted}{arguing that Maryland scheme is invalid under federal Social Security Act}.


Check Your Understanding



1. The lowest tier of Equal Protection judicial review is generally referred to as “rational basis” review. Under this standard, the government interest need only be legitimate and the means chosen reasonably (or rationally) related to that interest. The Courts in Railway Express and Dandridge are exceedingly deferential: even if the government interest is not entirely clear or logical, the Court will defer. In a more recent case, FCC v. Beach Communications, Inc., 508 U.S. 307 (1993), in an opinion by Justice Thomas, the Court went so far as to say that in “areas of social and economic policy, a statutory classification” should be “upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” However, this does not mean that classifications subject to rational basis review are always constitutional.

2. Both Railway Express and Dandridge make reference to the Court’s role as not venturing to decide the wisdom of the legislative action under review. This is an allusion to the so-called Lochner-era of Due Process discussed in a subsequent chapter.

3. Dandridge cites the so-called “Ashwander doctrine,” from Ashwander v. TVA, 297 U.S. 288 (1936), also known as constitutional avoidance. One might think of this as a component of judicial restraint or passive virtues. Under this principle, courts should decide cases on the narrower grounds of statutes before reaching the constitutional issues. Recall previous cases in which there has been a mix of statutory and constitutional claims in previous cases. How might you use the Ashwander doctrine as an attorney?

II. Sex/Gender Classifications

A. Early Cases

Note: Bradwell v. Illinois

In Bradwell v. Illinois, 83 U.S. (16 Wall) 130 (1873), the issue before the Court was whether Illinois’ denial of a license to practice law to “Mrs.” Myra Bradwell because she was a married woman violated the Fourteenth Amendment. Rather than Equal Protection, the case rested on the Privileges or Immunities Clause and the Court relied on The Slaughter-House Cases, decided the day before, to hold that practicing law was not a one of the privileges or immunities protected by the Fourteenth Amendment (or by the Privileges and Immunities Clause of Article IV). The case, however, is most famous for the concurring opinion of Justice Bradley (the same Justice who wrote the Court’s opinion in the Civil Rights Cases), which did not contain a single citation.

Mr. Justice Bradley [concurring]:

I concur in the judgment of the court in this case, by which the judgment of the Supreme Court of Illinois is affirmed, but not for the reasons specified in the opinion just read. The claim of the plaintiff, who is a married woman, to be admitted to practice as an attorney and counsellor-at-law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of the laws of Illinois, only men were admitted to the bar, and the legislature had not made any change in this respect, but had simply provided that no person should be admitted to practice as attorney or counsellor without having previously obtained a license for that purpose from two justices of the {state} Supreme Court, and that no person should receive a license without first obtaining a certificate from the court of some county of his good moral character. In other respects it was left to the discretion of the court to establish the rules by which admission to the profession should be determined. The court, however, regarded itself as bound by at least two limitations. One was that it should establish such terms of admission as would promote the proper administration of justice, and the other that it should not admit any persons, or class of persons, not intended by the legislature to be admitted, even though not expressly excluded by statute. In view of this latter limitation the court felt compelled to deny the application of females to be admitted as members of the bar. Being contrary to the rules of the common law and the usages of Westminster Hall from time immemorial, it could not be supposed that the legislature had intended to adopt any different rule.

The claim that, under the fourteenth amendment of the Constitution, which declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life. It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor.

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

The humane movements of modern society, which have for their object the multiplication of avenues for woman’s advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.

For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.

Mr. Justice Swayne and Mr. Justice Field concurred in the foregoing opinion of Mr. Justice Bradley.
The Chief Justice {Salmon Chase} dissented from the judgment of the court, and from all the opinions.
Note: Minor v. Happersett

In Minor v. Happersett, 88 U.S. (12 Wall.) 162 (1874), the issue was the constitutionality of a Missouri statute that provided, “Every male citizen of the United States shall be entitled to vote.”

The case arose when

Mrs. Virginia Minor, a native born, free, white citizen of the United States, and of the State of Missouri, over the age of twenty-one years, wishing to vote for electors for President and Vice-President of the United States, and for a representative in Congress, and for other officers, at the general election held in November, 1872, applied to one Happersett, the registrar of voters, to register her as a lawful voter, which he refused to do, assigning for cause that she was not a “male citizen of the United States,” but a woman.

The Court declared that

There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside.” But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare.

Note that the Court stated that this citizenship flows from the Fourteenth Amendment’s first sentence, which reversed Dred Scott, and that this citizenship predates the Fourteenth Amendment, presumably limited to women who were not enslaved.

The Court, however, unanimously held that suffrage (the right to vote) was not within the Fourteenth Amendment’s protections, specifically privileges or immunities. In support, the Court pointed to the Fifteenth Amendment, which provides “The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.” If the Fourteenth Amendment included the right to vote, the Court reasoned, there would have been no need for the Fifteenth.

The Court concluded:

We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power, to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman’s need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we find it is within the power of a State to withhold.

The Nineteenth Amendment providing for women’s suffrage was introduced in Congress a few years after Minor. It was submitted to the states for ratification in 1919 and adopted in 1920, 46 years after Minor.

Goesaert v. Cleary

335 U.S. 464 (1948)

Frankfurter, J. delivered the opinion of the Court in which Vinson, C.J., and Black, Reed, Jackson, and Burton, JJ., joined. Rutledge, J., filed a dissenting opinion, in which Douglas and Murphy, JJ., joined.
Mr. Justice Frankfurter delivered the opinion of the Court.

As part of the Michigan system for controlling the sale of liquor, bartenders are required to be licensed in all cities having a population of 50,000, or more, but no female may be so licensed unless she be ‘the wife or daughter of the male owner’ of a licensed liquor establishment. The case is here on direct appeal from an order of the District Court of three judges, * * * * denying an injunction to restrain the enforcement of the Michigan law. The claim, denied below, one judge dissenting, and renewed here, is that Michigan cannot forbid females generally from being barmaids and at the same time make an exception in favor of the wives and daughters of the owners of liquor establishments. Beguiling as the subject is, it need not detain us long. To ask whether or not the Equal Protection of the Laws Clause of the Fourteenth Amendment barred Michigan from making the classification the State has made between wives and daughters of owners of liquor places and wives and daughters of non-owners, is one of those rare instances where to state the question is in effect to answer it.

We are, to be sure, dealing with a historic calling. We meet the alewife, sprightly and ribald, in Shakespeare, but centuries before him she played a role in the social life of England. See, e.g., Jusserand, English Wayfaring Life (1889). The Fourteenth Amendment did not tear history up by the roots, and the regulation of the liquor traffic is one of the oldest and most untrammeled of legislative powers. Michigan could, beyond question, forbid all women from working behind a bar. This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly, in such matters as the regulation of the liquor traffic. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.

While Michigan may deny to all women opportunities for bartending, Michigan cannot play favorites among women without rhyme or reasons. The Constitution in enjoining the equal protection of the laws upon States precludes irrational discrimination as between persons or groups of persons in the incidence of a law. But the Constitution does not require situations ‘which are different in fact or opinion to be treated in law as though they were the same.’ Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go to the full length of prohibition if it believes that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition. Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid’s husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford equal protection of its laws. We cannot cross-examine either actually or argumentatively the mind of Michigan legislators nor question their motives. Since the line they have drawn is not without a basis in reason, we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling.

It would be an idle parade of familiar learning to review the multitudinous cases in which the constitutional assurance of the equal protection of the laws has been applied. The generalties on the subject are not in dispute; their application turns peculiarly on the particular circumstances of a case. * * * *Suffice it to say that ‘A statute is not invalid under the Constitution because it might have gone farther than it did, or because it may not succeed in bringing about the result that it tends to produce.’

Nor is it unconstitutional for Michigan to withdraw from women the occupation of bartending because it allows women to serve as waitresses where liquor is dispensed. The District Court has sufficiently indicated the reasons that may have influenced the legislature in allowing women to be waitresses in a liquor establishment over which a man’s ownership provides control. Nothing need be added to what was said below as to the other grounds on which the Michigan law was assailed.

Judgment affirmed.

Mr. Justice Rutledge, with whom Mr. Justice Douglas and Mr. Justice Murphy join, dissenting.

While the equal protection clause does not require a legislature to achieve ‘abstract symmetry’ or to classify with ‘mathematical nicety,’ that clause does require lawmarkers to refrain from invidious distinctions of the sort drawn by the statute challenged in this case.

The statute arbitrarily discriminates between male and female owners of liquor establishments. A male owner, although he himself is always absent from his bar, may employ his wife and daughter as barmaids. A female owner may neither work as a barmaid herself nor employ her daughter in that position, even if a man is always present in the establishment to keep order. This inevitable result of the classification belies the assumption that the statute was motivated by a legislative solicitude for the moral and physical well-being of women who, but for the law, would be employed as barmaids. Since there could be no other conceivable justification for such discrimination against women owners of liquor establishments, the statute should be held invalid as a denial of equal protection.

B. Developing Intermediate Scrutiny

Reed v. Reed

404 U.S. 71 (1971)

Burger, C.J., delivered the opinion for a unanimous Court.

Richard Lynn Reed, a minor, died intestate in Ada County, Idaho, on March 29, 1967. His adoptive parents, who had separated sometime prior to his death, are the parties to this appeal. Approximately seven months after Richard’s death, his mother, appellant Sally Reed, filed a petition in the Probate Court of Ada County, seeking appointment as administratrix of her son’s estate. Prior to the date set for a hearing on the mother’s petition, appellee Cecil Reed, the father of the decedent, filed a competing petition seeking to have himself appointed administrator of the son’s estate. The probate court held a joint hearing on the two petitions and thereafter ordered that letters of administration be issued to appellee Cecil Reed upon his taking the oath and filing the bond required by law. The court treated §§ 15-312 and 15-314 of the Idaho Code as the controlling statutes, and read those sections as compelling a preference for Cecil Reed because he was a male.

Section 15-312 designates the persons who are entitled to administer the estate of one who dies intestate. In making these designations, that section lists 11 classes of persons who are so entitled, and provides, in substance, that the order in which those classes are listed in the section shall be determinative of the relative rights of competing applicants for letters of administration. One of the 11 classes so enumerated is “[t]he father or mother” of the person dying intestate. Under this section, then, appellant and appellee, being members of the same entitlement class, would seem to have been equally entitled to administer their son’s estate. Section 1314 provides, however, that

[o]f several persons claiming and equally entitled [under § 1312] to administer, males must be preferred to females, and relatives of the whole to those of the half blood.

In issuing its order, the probate court implicitly recognized the equality of entitlement of the two applicants under § 15-312, and noted that neither of the applicants was under any legal disability; the court ruled, however, that appellee, being a male, was to be preferred to the female appellant “by reason of Section 15-314 of the Idaho Code.” In stating this conclusion, the probate judge gave no indication that he had attempted to determine the relative capabilities of the competing applicants to perform the functions incident to the administration of an estate. It seems clear the probate judge considered himself bound by statute to give preference to the male candidate over the female, each being otherwise “equally entitled.”

Sally Reed appealed from the probate court order, and her appeal was treated by the District Court of the Fourth Judicial District of Idaho as a constitutional attack on § 15-314. In dealing with the attack, that court held that the challenged section violated the Equal Protection Clause of the Fourteenth Amendment, and was, therefore, void; the matter was ordered “returned to the Probate Court for its determination of which of the two parties” was better qualified to administer the estate.

This order was never carried out, however, for Cecil Reed took a further appeal to the Idaho Supreme Court, which reversed the District Court and reinstated the original order naming the father administrator of the estate. In reaching this result, the Idaho Supreme Court first dealt with the governing statutory law and held that, under § 15-312 “a father and mother are ‘equally entitled’ to letters of administration,” but the preference given to males by § 15-314 is “mandatory” and leaves no room for the exercise of a probate court’s discretion in the appointment of administrators. Having thus definitively and authoritatively interpreted the statutory provisions involved, the Idaho Supreme Court then proceeded to examine, and reject, Sally Reed’s contention that § 15-314 violates the Equal Protection Clause by giving a mandatory preference to males over females, without regard to their individual qualifications as potential estate administrators.

Sally Reed thereupon appealed for review by this Court * * * * and we noted probable jurisdiction. Having examined the record and considered the briefs and oral arguments of the parties, we have concluded that the arbitrary preference established in favor of males by § 15-314 of the Idaho Code cannot stand in the face of the Fourteenth Amendment’s command that no State deny the equal protection of the laws to any person within its jurisdiction.

Idaho does not, of course, deny letters of administration to women altogether. Indeed, under § 15-312, a woman whose spouse dies intestate has a preference over a son, father, brother, or any other male relative of the decedent. Moreover, we can judicially notice that, in this country, presumably due to the greater longevity of women, a large proportion of estates, both intestate and under wills of decedents, are administered by surviving widows.

Section 15-314 is restricted in its operation to those situations where competing applications for letters of administration have been filed by both male and female members of the same entitlement class established by § 15-312. In such situations, § 15-314 provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause.

In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Railway Express Agency v. New York (1949). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.

The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced by the operation of §§ 15-312 and 15-314.

In upholding the latter section, the Idaho Supreme Court concluded that its objective was to eliminate one area of controversy when two or more persons, equally entitled under § 15-312, seek letters of administration, and thereby present the probate court “with the issue of which one should be named.” The court also concluded that, where such persons are not of the same sex, the elimination of females from consideration “is neither an illogical nor arbitrary method devised by the legislature to resolve an issue that would otherwise require a hearing as to the relative merits . . . of the two or more petitioning relatives. . . .”

Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy. The crucial question, however, is whether § 15-314 advances that objective in a manner consistent with the command of the Equal Protection Clause. We hold that it does not. To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.

We note finally that, if § 15-314 is viewed merely as a modifying appendage to § 15-312 and as aimed at the same objective, its constitutionality is not thereby saved. The objective of § 15-312 clearly is to establish degrees of entitlement of various classes of persons in accordance with their varying degrees and kinds of relationship to the intestate. Regardless of their sex, persons within any one of the enumerated classes of that section are similarly situated with respect to that objective. By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause.

The judgment of the Idaho Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Frontiero v. Richardson

411 U.S. 677 (1973)

Brennan, J., announced the Court’s judgment and delivered an opinion, in which Douglas, White, and Marshall, JJ., joined. Stewart, J., filed a statement concurring in the judgment. Powell, J., filed an opinion concurring in the judgment, in which Burger, C. J., and Blackmun, J., joined. Rehnquist, J., filed a dissenting statement.
Mr. Justice Brennan announced the judgment of the Court and an opinion in which Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall join.

The question before us concerns the right of a female member of the uniformed services to claim her spouse as a “dependent” for the purposes of obtaining increased quarters allowances and medical and dental benefits under 37 U.S.C. 401, 403, and 10 U.S.C. 1072, 1076, on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a “dependent” without regard to whether she is in fact dependent upon him for any part of her support. A servicewoman, on the other hand, may not claim her husband as a “dependent” under these programs unless he is in fact dependent upon her for over one-half of his support. Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for the Middle District of Alabama, one judge dissenting, rejected this contention and sustained the constitutionality of the provisions of the statutes making this distinction. We noted probable jurisdiction. We reverse.


* * * * Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her “dependent.” Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant’s application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support. Appellants then commenced this suit, contending that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment. {footnote 5 states: “[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is “so unjustifiable as to be violative of due process,’” and includes a citation to Bolling v. Sharpe (1954)}.

In essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a procedural matter, a female member is required to demonstrate her spouse’s dependency, while no such burden is imposed upon male members; and, second, as a substantive matter, a male member who does not provide more than one-half of his wife’s support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent injunction against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive.

Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members, a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the “bread-winner” in the family – and the wife typically the “dependent” partner – “it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members.” Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District Court speculated that such differential treatment might conceivably lead to a “considerable saving of administrative expense and manpower.”


At the outset, appellants contend that classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in Reed v. Reed (1971).

* * * * In reaching this result {in Reed}, the Court implicitly rejected appellee’s apparently rational explanation of the statutory scheme, and concluded that, by ignoring the individual qualifications of particular applicants, the challenged statute provided “dissimilar treatment for men and women who are . . . similarly situated.” The Court therefore held that, even though the State’s interest in achieving administrative efficiency “is not without some legitimacy,” “[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the [Constitution] . . . .” This departure from “traditional” rational-basis analysis with respect to sex-based classifications is clearly justified.

There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of “romantic paternalism” which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim:

“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .

“. . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.”

Bradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring).

As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. See generally L. Kanowitz, Women and the Law: The Unfinished Revolution 5-6 (1969); G. Myrdal, An American Dilemma 1073 (20th anniversary ed. 1962). And although blacks were guaranteed the right to vote in 1870, women were denied even that right – which is itself “preservative of other basic civil and political rights” – until adoption of the Nineteenth Amendment half a century later.

It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena. See generally K. Amundsen, The Silenced Majority: Women and American Democracy (1971); The President’s Task Force on Women’s Rights and Responsibilities, A Matter of Simple Justice (1970).

Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate “the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . .” And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.

We might also note that, over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In Title VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of “race, color, religion, sex, or national origin.” Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act “shall discriminate . . . between employees on the basis of sex.” And § 1 of the Equal Rights Amendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the States for ratification, declares that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a coequal branch of Government is not without significance to the question presently under consideration.

With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid.


The sole basis of the classification established in the challenged statutes is the sex of the individuals involved. Thus, * * * * a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse’s support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse’s support. Thus, to this extent at least, it may fairly be said that these statutes command “dissimilar treatment for men and women who are . . . similarly situated.” Reed v. Reed.

Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere “administrative convenience.” In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands rarely are dependent upon their wives. Thus, the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.

The Government offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant increased benefits with respect to all male members, than it is to determine which male members are in fact entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, however, there is substantial evidence that, if put to the test, many of the wives of male members would fail to qualify for benefits. And in light of the fact that the dependency determination with respect to the husbands of female members is presently made solely on the basis of affidavits, rather than through the more costly hearing process, the Government’s explanation of the statutory scheme is, to say the least, questionable.

In any case, our prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, “the Constitution recognizes higher values than speed and efficiency.” And when we enter the realm of “strict judicial scrutiny,” there can be no doubt that “administrative convenience” is not a shibboleth, the mere recitation of which dictates constitutionality. On the contrary, any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands “dissimilar treatment for men and women who are . . . similarly situated,” and therefore involves the “very kind of arbitrary legislative choice forbidden by the [Constitution] . . . .” Reed v. Reed. We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.


Mr. Justice Powell, with whom The Chief Justice {Burger} and Mr. Justice Blackmun join, concurring in the judgment.

I agree that the challenged statutes constitute an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment, but I cannot join the opinion of Mr. Justice Brennan, which would hold that all classifications based upon sex, “like classifications based upon race, alienage, and national origin,” are “inherently suspect, and must therefore be subjected to close judicial scrutiny.” It is unnecessary for the Court in this case to characterize sex as a suspect classification, with all of the far-reaching implications of such a holding. Reed v. Reed (1971), which abundantly supports our decision today, did not add sex to the narrowly limited group of classifications which are inherently suspect. In my view, we can and should decide this case on the authority of Reed, and reserve for the future any expansion of its rationale.

There is another, and I find compelling, reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment. It seems to me that this reaching out to preempt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes.

There are times when this Court, under our system, cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people. But democratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.

Mr. Justice Stewart concurs in the judgment, agreeing that the statutes before us work an invidious discrimination in violation of the Constitution. Reed v. Reed.
Mr. Justice Rehnquist dissents for the reasons stated by Judge Rives in his opinion for the District Court, Frontiero v. Laird, 341 F. Supp. 201 (1972).
Craig v. Boren

429 U.S. 190 (1976)

Brennan, J., delivered the opinion of the Court, in which White, Marshall, Powell, and Stevens, JJ., joined, and in all but Part II-D of which Blackmun, J., joined. Powell, J. and Stevens, J. filed concurring opinions. Blackmun, J., filed a statement concurring in part. Stewart, J., filed an opinion concurring in the judgment. Burger, C. J. and Rehnquist, J. filed dissenting opinions.
Mr. Justice Brennan delivered the opinion of the Court.

The interaction of two sections of an Oklahoma statute, Okla. Stat., Tit. 37, 241 and 245 (1958 and Supp. 1976), prohibits the sale of “nonintoxicating” 3.2% beer to males under the age of 21 and to females under the age of 18. The question to be decided is whether such a gender-based differential constitutes a denial to males 18-20 years of age of the equal protection of the laws in violation of the Fourteenth Amendment.

This action was brought in the District Court for the Western District of Oklahoma on December 20, 1972, by appellant Craig, a male then between 18 and 21 years of age, and by appellant Whitener, a licensed vendor of 3.2% beer. The complaint sought declaratory and injunctive relief against enforcement of the gender-based differential on the ground that it constituted invidious discrimination against males 18-20 years of age. A three-judge court convened sustained the constitutionality of the statutory differential and dismissed the action. We noted probable jurisdiction of appellants’ appeal. We reverse.


We first address a preliminary question of standing * * * * {omitted; the Court found the claims could proceed.}


Before 1972, Oklahoma defined the commencement of civil majority at age 18 for females and age 21 for males. In contrast, females were held criminally responsible as adults at age 18 and males at age 16. After the Court of Appeals for the Tenth Circuit held in 1972, on the authority of Reed v. Reed (1971), that the age distinction was unconstitutional for purposes of establishing criminal responsibility as adults, the Oklahoma Legislature fixed age 18 as applicable to both males and females. In 1972, 18 also was established as the age of majority for males and females in civil matters, except that 241 and 245 of the 3.2% beer statute were simultaneously codified to create an exception to the gender-free rule.

Analysis may appropriately begin with the reminder that Reed emphasized that statutory classifications that distinguish between males and females are “subject to scrutiny under the Equal Protection Clause.” To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. {note: there is no citation here}. Thus, in Reed, the objectives of “reducing the workload on probate courts,” and “avoiding intrafamily controversy,” were deemed of insufficient importance to sustain use of an overt gender criterion in the appointment of administrators of intestate decedents’ estates. Decisions following Reed similarly have rejected administrative ease and convenience as sufficiently important objectives to justify gender-based classifications. See, e. g., Stanley v. Illinois (1972); Frontiero v. Richardson (1973); cf. Schlesinger v. Ballard, (1975). And only two Terms ago, Stanton v. Stanton (1975), expressly stating that Reed v. Reed was “controlling,” held that Reed required invalidation of a Utah differential age-of-majority statute, notwithstanding the statute’s coincidence with and furtherance of the State’s purpose of fostering “old notions” of role typing and preparing boys for their expected performance in the economic and political worlds.

Reed v. Reed has also provided the underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification. Hence, “archaic and overbroad” generalizations, Schlesinger v. Ballard, concerning the financial position of servicewomen, Frontiero v. Richardson, and working women, Weinberger v. Wiesenfeld (1975), could not justify use of a gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly outdated misconceptions concerning the role of females in the home rather than in the “marketplace and world of ideas” were rejected as loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy. Stanton v. Stanton; Taylor v. Louisiana (1975). In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances where the sex-centered generalization actually comported with fact.

In this case, too, “Reed, we feel, is controlling . . .,” Stanton v. Stanton. We turn then to the question whether, under Reed, the difference between males and females with respect to the purchase of 3.2% beer warrants the differential in age drawn by the Oklahoma statute. We conclude that it does not.


The District Court recognized that Reed v. Reed was controlling. In applying the teachings of that case, the court found the requisite important governmental objective in the traffic-safety goal proffered by the Oklahoma Attorney General. It then concluded that the statistics introduced by the appellees established that the gender-based distinction was substantially related to achievement of that goal.


We accept for purposes of discussion the District Court’s identification of the objective underlying § 241 and § 245 as the enhancement of traffic safety. Clearly, the protection of public health and safety represents an important function of state and local governments. However, appellees’ statistics in our view cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot under Reed withstand equal protection challenge.

The appellees introduced a variety of statistical surveys. First, an analysis of arrest statistics for 1973 demonstrated that 18-20-year-old male arrests for “driving under the influence” and “drunkenness” substantially exceeded female arrests for that same age period. Similarly, youths aged 17-21 were found to be overrepresented among those killed or injured in traffic accidents, with males again numerically exceeding females in this regard. Third, a random roadside survey in Oklahoma City revealed that young males were more inclined to drive and drink beer than were their female counterparts. Fourth, Federal Bureau of Investigation nationwide statistics exhibited a notable increase in arrests for “driving under the influence.” Finally, statistical evidence gathered in other jurisdictions, particularly Minnesota and Michigan, was offered to corroborate Oklahoma’s experience by indicating the pervasiveness of youthful participation in motor vehicle accidents following the imbibing of alcohol. Conceding that “the case is not free from doubt,” the District Court nonetheless concluded that this statistical showing substantiated “a rational basis for the legislative judgment underlying the challenged classification.”

Even were this statistical evidence accepted as accurate, it nevertheless offers only a weak answer to the equal protection question presented here. The most focused and relevant of the statistical surveys, arrests of 18-20-year-olds for alcohol-related driving offenses, exemplifies the ultimate unpersuasiveness of this evidentiary record. Viewed in terms of the correlation between sex and the actual activity that Oklahoma seeks to regulate – driving while under the influence of alcohol – the statistics broadly establish that .18% of females and 2% of males in that age group were arrested for that offense. While such a disparity is not trivial in a statistical sense, it hardly can form the basis for employment of a gender line as a classifying device. Certainly if maleness is to serve as a proxy for drinking and driving, a correlation of 2% must be considered an unduly tenuous “fit.” Indeed, prior cases have consistently rejected the use of sex as a decisionmaking factor even though the statutes in question certainly rested on far more predictive empirical relationships than this.

Moreover, the statistics exhibit a variety of other shortcomings that seriously impugn their value to equal protection analysis. Setting aside the obvious methodological problems, the surveys do not adequately justify the salient features of Oklahoma’s gender-based traffic-safety law. None purports to measure the use and dangerousness of 3.2% beer as opposed to alcohol generally, a detail that is of particular importance since, in light of its low alcohol lever, Oklahoma apparently considers the 3.2% beverage to be “nonintoxicating.” Moreover, many of the studies, while graphically documenting the unfortunate increase in driving while under the influence of alcohol, make no effort to relate their findings to age-sex differential as involved here. Indeed, the only survey that explicitly centered its attention upon young drivers and their use of beer – albeit apparently not of the diluted 3.2% variety – reached results that hardly can be viewed as impressive in justifying either a gender or age classification.

There is no reason to belabor this line of analysis. It is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique. But this merely illustrates that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause. Suffice to say that the showing offered by the appellees does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving. In fact, when it is further recognized that Oklahoma’s statute prohibits only the selling of 3.2% beer to young males and not their drinking the beverage once acquired (even after purchase by their 18-20-year-old female companions), the relationship between gender and traffic safety becomes far too tenuous to satisfy Reed’s requirement that the gender-based difference be substantially related to achievement of the statutory objective.

We hold, therefore, that under Reed, Oklahoma’s 3.2% beer statute invidiously discriminates against males 18-20 years of age.


Appellees argue, however, that 241 and 245 enforce state policies concerning the sale and distribution of alcohol and by force of the Twenty-first Amendment should therefore be held to withstand the equal protection challenge. * * * *

In sum, the principles embodied in the Equal Protection Clause are not to be rendered inapplicable by statistically measured but loose-fitting generalities concerning the drinking tendencies of aggregate groups. We thus hold that the operation of the Twenty-first Amendment does not alter the application of equal protection standards that otherwise govern this case.

We conclude that the gender-based differential contained in Okla. Stat., Tit. 37, 245 constitutes a denial of the equal protection of the laws to males aged 18-20and reverse the judgment of the District Court.

It is so ordered.

Mr. Justice Stevens, concurring.

There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases. Whatever criticism may be leveled at a judicial opinion implying that there are at least three such standards applies with the same force to a double standard.

I am inclined to believe that what has become known as the two-tiered analysis of equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion. I also suspect that a careful explanation of the reasons motivating particular decisions may contribute more to an identification of that standard than an attempt to articulate it in all-encompassing terms. It may therefore be appropriate for me to state the principal reasons which persuaded me to join the Court’s opinion.

In this case, the classification is not as obnoxious as some the Court has condemned, nor as inoffensive as some the Court has accepted. It is objectionable because it is based on an accident of birth, because it is a mere remnant of the now almost universally rejected tradition of discriminating against males in this age bracket, and because, to the extent it reflects any physical difference between males and females, it is actually perverse. The question then is whether the traffic safety justification put forward by the State is sufficient to make an otherwise offensive classification acceptable.

The classification is not totally irrational. For the evidence does indicate that there are more males than females in this age bracket who drive and also more who drink. Nevertheless, there are several reasons why I regard the justification as unacceptable. It is difficult to believe that the statute was actually intended to cope with the problem of traffic safety, since it has only a minimal effect on access to a not very intoxicating beverage and does not prohibit its consumption. Moreover, the empirical data submitted by the State accentuate the unfairness of treating all 18-20-year-old males as inferior to their female counterparts. The legislation imposes a restraint on 100% of the males in the class allegedly because about 2% of them have probably violated one or more laws relating to the consumption of alcoholic beverages. It is unlikely that this law will have a significant deterrent effect either on that 2% or on the law-abiding 98%. But even assuming some such slight benefit, it does not seem to me that an insult to all of the young men of the State can be justified by visiting the sins of the 2% on the 98%.

Mr. Justice Rehnquist, dissenting.

The Court’s disposition of this case is objectionable on two grounds. First is its conclusion that men challenging a gender-based statute which treats them less favorably than women may invoke a more stringent standard of judicial review than pertains to most other types of classifications. Second is the Court’s enunciation of this standard, without citation to any source, as being that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” (emphasis added). The only redeeming feature of the Court’s opinion, to my mind, is that it apparently signals a retreat by those who joined the plurality opinion in Frontiero v. Richardson (1973), from their view that sex is a “suspect” classification for purposes of equal protection analysis. I think the Oklahoma statute challenged here need pass only the “rational basis” equal protection analysis expounded in cases such as * * * * Williamson v. Lee Optical Co., (1955), and I believe that it is constitutional under that analysis.


In Frontiero v. Richardson, the opinion for the plurality sets forth the reasons of four Justices for concluding that sex should be regarded as a suspect classification for purposes of equal protection analysis. * * * *

Subsequent to Frontiero, the Court has declined to hold that sex is a suspect class, Stanton v. Stanton (1975) and no such holding is imported by the Court’s resolution of this case. However, the Court’s application here of an elevated or “intermediate” level scrutiny, like that invoked in cases dealing with discrimination against females, raises the question of why the statute here should be treated any differently from countless legislative classifications unrelated to sex which have been upheld under a minimum rationality standard. Dandridge v. Williams (1970); Williamson v. Lee Optical Co.

Most obviously unavailable to support any kind of special scrutiny in this case, is a history or pattern of past discrimination, such as was relied on by the plurality in Frontiero to support its invocation of strict scrutiny. There is no suggestion in the Court’s opinion that males in this age group are in any way peculiarly disadvantaged, subject to systematic discriminatory treatment, or otherwise in need of special solicitude from the courts.

The Court does not discuss the nature of the right involved, and there is no reason to believe that it sees the purchase of 3.2% beer as implicating any important interest, let alone one that is “fundamental” in the constitutional sense of invoking strict scrutiny. Indeed, the Court’s accurate observation that the statute affects the selling but not the drinking of 3.2% beer, further emphasizes the limited effect that it has on even those persons in the age group involved. There is, in sum, nothing about the statutory classification involved here to suggest that it affects an interest, or works against a group, which can claim under the Equal Protection Clause that it is entitled to special judicial protection.

It is true that a number of our opinions contain broadly phrased dicta implying that the same test should be applied to all classifications based on sex, whether affecting females or males. However, before today, no decision of this Court has applied an elevated level of scrutiny to invalidate a statutory discrimination harmful to males, except where the statute impaired an important personal interest protected by the Constitution. There being no such interest here, and there being no plausible argument that this is a discrimination against females, the Court’s reliance on our previous sex-discrimination cases is ill-founded. It treats gender classification as a talisman which – without regard to the rights involved or the persons affected – calls into effect a heavier burden of judicial review.

The Court’s conclusion that a law which treats males less favorably than females “must serve important governmental objectives and must be substantially related to achievement of those objectives” apparently comes out of thin air. The Equal Protection Clause contains no such language, and none of our previous cases adopt that standard. I would think we have had enough difficulty with the two standards of review which our cases have recognized – the norm of “rational basis,” and the “compelling state interest” required where a “suspect classification” is involved – so as to counsel weightily against the insertion of still another “standard” between those two. How is this Court to divine what objectives are important? How is it to determine whether a particular law is “substantially” related to the achievement of such objective, rather than related in some other way to its achievement? Both of the phrases used are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation, masquerading as judgments whether such legislation is directed at “important” objectives or, whether the relationship to those objectives is “substantial” enough.

I would have thought that if this Court were to leave anything to decision by the popularly elected branches of the Government, where no constitutional claim other than that of equal protection is invoked, it would be the decision as to what governmental objectives to be achieved by law are “important,” and which are not. As for the second part of the Court’s new test, the Judicial Branch is probably in no worse position than the Legislative or Executive Branches to determine if there is any rational relationship between a classification and the purpose which it might be thought to serve. But the introduction of the adverb “substantially” requires courts to make subjective judgments as to operational effects, for which neither their expertise nor their access to data fits them. And even if we manage to avoid both confusion and the mirroring of our own preferences in the development of this new doctrine, the thousands of judges in other courts who must interpret the Equal Protection Clause may not be so fortunate.


The applicable rational-basis test is one which “permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. * * * *”

Our decisions indicate that application of the Equal Protection Clause in a context not justifying an elevated level of scrutiny does not demand “mathematical nicety” or the elimination of all inequality. Those cases recognize that the practical problems of government may require rough accommodations of interests, and hold that such accommodations should be respected unless no reasonable basis can be found to support them. Dandridge v. Williams. Whether the same ends might have been better or more precisely served by a different approach is no part of the judicial inquiry under the traditional minimum rationality approach. * * * *

The Court’s criticism of the statistics relied on by the District Court conveys the impression that a legislature in enacting a new law is to be subjected to the judicial equivalent of a doctoral examination in statistics. Legislatures are not held to any rules of evidence such as those which may govern courts or other administrative bodies, and are entitled to draw factual conclusions on the basis of the determination of probable cause which an arrest by a police officer normally represents. In this situation, they could reasonably infer that the incidence of drunk driving is a good deal higher than the incidence of arrest.

And while, as the Court observes, relying on a report to a Presidential Commission which it cites in a footnote, such statistics may be distorted as a result of stereotyping, the legislature is not required to prove before a court that its statistics are perfect. In any event, if stereotypes are as pervasive as the Court suggests, they may in turn influence the conduct of the men and women in question, and cause the young men to conform to the wild and reckless image which is their stereotype. * * * *

The Oklahoma Legislature could have believed that 18-20-year-old males drive substantially more, and tend more often to be intoxicated than their female counterparts; that they prefer beer and admit to drinking and driving at a higher rate than females; and that they suffer traffic injuries out of proportion to the part they make up of the population. Under the appropriate rational-basis test for equal protection, it is neither irrational nor arbitrary to bar them from making purchases of 3.2% beer, which purchases might in many cases be made by a young man who immediately returns to his vehicle with the beverage in his possession. The record does not give any good indication of the true proportion of males in the age group who drink and drive (except that it is no doubt greater than the 2% who are arrested), but whatever it may be I cannot see that the mere purchase right involved could conceivably raise a due process question. There being no violation of either equal protection or due process, the statute should accordingly be upheld.


Check Your Understanding


United States v. Virginia (VMI)

518 U.S. 515 (1996)

Ginsburg, J., delivered the opinion of the Court, in which Stevens, O’Connor, Kennedy, Souter, and Breyer, JJ., joined. Rehnquist, C. J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion. Thomas, J., took no part in the consideration or decision of the case.
Justice Ginsburg delivered the opinion of the Court.

Virginia’s public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree.


Founded in 1839, VMI is today the sole single-sex school among Virginia’s 15 public institutions of higher learning. VMI’s distinctive mission is to produce “citizen-soldiers,” men prepared for leadership in civilian life and in military service. VMI pursues this mission through pervasive training of a kind not available anywhere else in Virginia. Assigning prime place to character development, VMI uses an “adversative method” modeled on English public schools and once characteristic of military instruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. The school’s graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazardous course.

VMI has notably succeeded in its mission to produce leaders; among its alumni are military generals, Members of Congress, and business executives. The school’s alumni overwhelmingly perceive that their VMI training helped them to realize their personal goals. VMI’s endowment reflects the loyalty of its graduates; VMI has the largest per-student endowment of all undergraduate institutions in the Nation.

Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women. And the school’s impressive record in producing leaders has made admission desirable to some women. Nevertheless, Virginia has elected to preserve exclusively for men the advantages and opportunities a VMI education affords.


From its establishment in 1839 as one of the Nation’s first state military colleges, VMI has remained financially supported by Virginia and “subject to the control of the [Virginia] General Assembly,” First southern college to teach engineering and industrial chemistry, VMI once provided teachers for the State’s schools. Civil War strife threatened the school’s vitality, but a resourceful superintendent regained legislative support by highlighting “VMI’s great potential[,] through its technical know-how,” to advance Virginia’s postwar recovery.

VMI today enrolls about 1,300 men as cadets. Its academic offerings in the liberal arts, sciences, and engineering are also available at other public colleges and universities in Virginia. But VMI’s mission is special. It is the mission of the school

“to produce educated and honorable men, prepared for the varied work of civil life, imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready as citizen-soldiers to defend their country in time of national peril.”

In contrast to the federal service academies, institutions maintained “to prepare cadets for career service in the armed forces,” VMI’s program “is directed at preparation for both military and civilian life”; “[o]nly about 15% of VMI cadets enter career military service.”

VMI produces its “citizen-soldiers” through “an adversative, or doubting, model of education” which features “[p]hysical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values.” As one Commandant of Cadets described it, the adversative method “dissects the young student,” and makes him aware of his “limits and capabilities,” so that he knows “how far he can go with his anger, . . . how much he can take under stress, . . . exactly what he can do when he is physically exhausted.”

VMI cadets live in spartan barracks where surveillance is constant and privacy nonexistent; they wear uniforms, eat together in the mess hall, and regularly participate in drills. Entering students are incessantly exposed to the rat line, “an extreme form of the adversative model,” comparable in intensity to Marine Corps boot camp. Tormenting and punishing, the rat line bonds new cadets to their fellow sufferers and, when they have completed the 7-month experience, to their former tormentors.

VMI’s “adversative model” is further characterized by a hierarchical “class system” of privileges and responsibilities, a “dyke system” for assigning a senior class mentor to each entering class “rat,” and a stringently enforced “honor code,” which prescribes that a cadet “‘does not lie, cheat, steal nor tolerate those who do.’”

VMI attracts some applicants because of its reputation as an extraordinarily challenging military school, and “because its alumni are exceptionally close to the school.” “[W]omen have no opportunity anywhere to gain the benefits of [the system of education at VMI].”


In 1990, prompted by a complaint filed with the Attorney General by a female high-school student seeking admission to VMI, the United States sued the Commonwealth of Virginia and VMI, alleging that VMI’s exclusively male admission policy violated the Equal Protection Clause of the Fourteenth Amendment. Trial of the action consumed six days and involved an array of expert witnesses on each side.

In the two years preceding the lawsuit, the District Court noted, VMI had received inquiries from 347 women, but had responded to none of them. “[S]ome women, at least,” the court said, “would want to attend the school if they had the opportunity.” The court further recognized that, with recruitment, VMI could “achieve at least 10% female enrollment”-“a sufficient ‘critical mass’ to provide the female cadets with a positive educational experience.” And it was also established that “some women are capable of all of the individual activities required of VMI cadets.” In addition, experts agreed that if VMI admitted women, “the VMI ROTC experience would become a better training program from the perspective of the armed forces, because it would provide training in dealing with a mixed-gender army.”

The District Court ruled in favor of VMI, however, and rejected the equal protection challenge pressed by the United States. That court correctly recognized that Mississippi Univ. for Women v. Hogan (1982), was the closest guide. There, this Court underscored that a party seeking to uphold government action based on sex must establish an “exceedingly persuasive justification” for the classification. Mississippi Univ. for Women. To succeed, the defender of the challenged action must show “at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”

The District Court reasoned that education in “a single-gender environment, be it male or female,” yields substantial benefits. VMI’s school for men brought diversity to an otherwise coeducational Virginia system, and that diversity was “enhanced by VMI’s unique method of instruction.” If single-gender education for males ranks as an important governmental objective, it becomes obvious, the District Court concluded, that the only means of achieving the objective “is to exclude women from the all-male institution-VMI.”

* * * * The Court of Appeals for the Fourth Circuit disagreed and vacated the District Court’s judgment. The appellate court held: “The Commonwealth of Virginia has not . . . advanced any state policy by which it can justify its determination, under an announced policy of diversity, to afford VMI’s unique type of program to men and not to women.”

The appeals court greeted with skepticism Virginia’s assertion that it offers single-sex education at VMI as a facet of the State’s overarching and undisputed policy to advance “autonomy and diversity.” The court underscored Virginia’s nondiscrimination commitment: “‘[I]t is extremely important that [colleges and universities] deal with faculty, staff, and students without regard to sex, race, or ethnic origin.’” * * * * The parties agreed that “some women can meet the physical standards now imposed on men,” and the court was satisfied that “neither the goal of producing citizen soldiers nor VMI’s implementing methodology is inherently unsuitable to women.” The Court of Appeals, however, accepted the District Court’s finding that “at least these three aspects of VMI’s program-physical training, the absence of privacy, and the adversative approach-would be materially affected by coeducation.” Remanding the case, the appeals court assigned to Virginia, in the first instance, responsibility for selecting a remedial course. The court suggested these options for the State: Admit women to VMI; establish parallel institutions or programs; or abandon state support, leaving VMI free to pursue its policies as a private institution. In May 1993, this Court denied certiorari.


In response to the Fourth Circuit’s ruling, Virginia proposed a parallel program for women: Virginia Women’s Institute for Leadership (VWIL). The 4-year, state-sponsored undergraduate program would be located at Mary Baldwin College, a private liberal arts school for women, and would be open, initially, to about 25 to 30 students. Although VWIL would share VMI’s mission-to produce “citizen-soldiers”-the VWIL program would differ, as does Mary Baldwin College, from VMI in academic offerings, methods of education, and financial resources.

The average combined SAT score of entrants at Mary Baldwin is about 100 points lower than the score for VMI freshmen. Mary Baldwin’s faculty holds “significantly fewer Ph.D.’s than the faculty at VMI,” and receives significantly lower salaries. While VMI offers degrees in liberal arts, the sciences, and engineering, Mary Baldwin, at the time of trial, offered only bachelor of arts degrees. A VWIL student seeking to earn an engineering degree could gain one, without public support, by attending Washington University in St. Louis, Missouri, for two years, paying the required private tuition.

Experts in educating women at the college level composed the Task Force charged with designing the VWIL program; Task Force members were drawn from Mary Baldwin’s own faculty and staff. Training its attention on methods of instruction appropriate for “most women,” the Task Force determined that a military model would be “wholly inappropriate” for VWIL.

VWIL students would participate in ROTC programs and a newly established, “largely ceremonial” Virginia Corps of Cadets, but the VWIL House would not have a military format, and VWIL would not require its students to eat meals together or to wear uniforms during the school day. In lieu of VMI’s adversative method, the VWIL Task Force favored “a cooperative method which reinforces self-esteem.” In addition to the standard bachelor of arts program offered at Mary Baldwin, VWIL students would take courses in leadership, complete an off-campus leadership externship, participate in community service projects, and assist in arranging a speaker series.

Virginia represented that it will provide equal financial support for in-state VWIL students and VMI cadets, and the VMI Foundation agreed to supply a $5.4625 million endowment for the VWIL program. Mary Baldwin’s own endowment is about $19 million; VMI’s is $131 million. Mary Baldwin will add $35 million to its endowment based on future commitments; VMI will add $220 million. The VMI Alumni Association has developed a network of employers interested in hiring VMI graduates. The Association has agreed to open its network to VWIL graduates, but those graduates will not have the advantage afforded by a VMI degree.


Virginia returned to the District Court seeking approval of its proposed remedial plan, and the court decided the plan met the requirements of the Equal Protection Clause. The District Court again acknowledged evidentiary support for these determinations: “[T]he VMI methodology could be used to educate women and, in fact, some women . . . may prefer the VMI methodology to the VWIL methodology.” But the “controlling legal principles,” the District Court decided, “do not require the Commonwealth to provide a mirror image VMI for women.” The court anticipated that the two schools would “achieve substantially similar outcomes.” It concluded: “If VMI marches to the beat of a drum, then Mary Baldwin marches to the melody of a fife and when the march is over, both will have arrived at the same destination.”

A divided Court of Appeals affirmed the District Court’s judgment. * * * * “[P]roviding the option of a single-gender college education may be considered a legitimate and important aspect of a public system of higher education,” the appeals court observed; that objective, the court added, is “not pernicious.” Moreover, the court continued, the adversative method vital to a VMI education “has never been tolerated in a sexually heterogeneous environment.” The method itself “was not designed to exclude women,” the court noted, but women could not be accommodated in the VMI program, the court believed, for female participation in VMI’s adversative training “would destroy . . . any sense of decency that still permeates the relationship between the sexes.”

Having determined, deferentially, the legitimacy of Virginia’s purpose, the court considered the question of means. Exclusion of “men at Mary Baldwin College and women at VMI,” the court said, was essential to Virginia’s purpose, for without such exclusion, the State could not “accomplish [its] objective of providing single-gender education.”

The court recognized that, as it analyzed the case, means merged into end, and the merger risked “bypass[ing] any equal protection scrutiny.” * * * *

Senior Circuit Judge Phillips dissented. The court, in his judgment, had not held Virginia to the burden of showing an “‘exceedingly persuasive [justification]’” for the State’s action (quoting Mississippi University for Women). In Judge Phillips’ view, the court had accepted “rationalizations compelled by the exigencies of this litigation,” and had not confronted the State’s “actual overriding purpose.” That purpose, Judge Phillips said, was clear from the historical record; it was “not to create a new type of educational opportunity for women, . . . nor to further diversify the Commonwealth’s higher education system[,] . . . but [was] simply . . . to allow VMI to continue to exclude women in order to preserve its historic character and mission.” * * * *

The Fourth Circuit denied rehearing en banc. Circuit Judge Motz, joined by Circuit Judges Hall, Murnaghan, and Michael, filed a dissenting opinion. * * * * “Women need not be guaranteed equal ‘results,’” Judge Motz said, “but the Equal Protection Clause does require equal opportunity . . . [and] that opportunity is being denied here.”


The cross-petitions in this case present two ultimate issues. First, does Virginia’s exclusion of women from the educational opportunities provided by VMI-extraordinary opportunities for military training and civilian leadership development-deny to women “capable of all of the individual activities required of VMI cadets,” the equal protection of the laws guaranteed by the Fourteenth Amendment? Second, if VMI’s “unique” situation, -as Virginia’s sole single-sex public institution of higher education-offends the Constitution’s equal protection principle, what is the remedial requirement?


We note, once again, the core instruction of this Court’s pathmarking decisions in J. E. B. v. Alabama ex rel. T. B. (1994), and Mississippi Univ. for Women: Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification” for that action.

Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this Court acknowledged a generation ago, “our Nation has had a long and unfortunate history of sex discrimination.” Frontiero v. Richardson (1973). Through a century plus three decades and more of that history, women did not count among voters composing “We the People”; not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any “basis in reason” could be conceived for the discrimination. See, e.g., Goesaert v. Cleary (1948).

In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Reed v. Reed. Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature-equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities. See, e.g., Kirchberg v. Feenstra (1981) (affirming invalidity of Louisiana law that made husband “head and master” of property jointly owned with his wife, giving him unilateral right to dispose of such property without his wife’s consent); Stanton v. Stanton (1975) (invalidating Utah requirement that parents support boys until age 21, girls only until age 18).

Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men). See J. E. B., (Kennedy, J., concurring in judgment) (case law evolving since 1971 “reveal[s] a strong presumption that gender classifications are invalid”). To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. See Mississippi Univ. for Women. The State must show “at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” Id. The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. See Weinberger v. Wiesenfeld (1975); Califano v. Goldfarb (1977) (Stevens, J., concurring in judgment).

The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed “inherent differences” are no longer accepted as a ground for race or national origin classifications. See Loving v. Virginia (1967). Physical differences between men and women, however, are enduring: “[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.” Ballard v. United States (1946).

“Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women “for particular economic disabilities [they have] suffered,” Califano v. Webster (1977) (per curiam), to “promot[e] equal employment opportunity,” see California Federal Sav. & Loan Assn. v. Guerra (1987), to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, see Goesaert, to create or perpetuate the legal, social, and economic inferiority of women.

Measuring the record in this case against the review standard just described, we conclude that Virginia has shown no “exceedingly persuasive justification” for excluding all women from the citizen-soldier training afforded by VMI. We therefore affirm the Fourth Circuit’s initial judgment, which held that Virginia had violated the Fourteenth Amendment’s Equal Protection Clause. Because the remedy proffered by Virginia-the Mary Baldwin VWIL program-does not cure the constitutional violation, i.e., it does not provide equal opportunity, we reverse the Fourth Circuit’s final judgment in this case.


The Fourth Circuit initially held that Virginia had advanced no state policy by which it could justify, under equal protection principles, its determination “to afford VMI’s unique type of program to men and not to women.” Virginia challenges that “liability” ruling and asserts two justifications in defense of VMI’s exclusion of women. First, the Commonwealth contends, “single-sex education provides important educational benefits,” and the option of single-sex education contributes to “diversity in educational approaches.” Second, the Commonwealth argues, “the unique VMI method of character development and leadership training,” the school’s adversative approach, would have to be modified were VMI to admit women. We consider these two justifications in turn.


Single-sex education affords pedagogical benefits to at least some students, Virginia emphasizes, and that reality is uncontested in this litigation. Similarly, it is not disputed that diversity among public educational institutions can serve the public good. But Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the State. In cases of this genre, our precedent instructs that “benign” justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.

Mississippi Univ. for Women is immediately in point. There the State asserted, in justification of its exclusion of men from a nursing school, that it was engaging in “educational affirmative action” by “compensat[ing] for discrimination against women.” Undertaking a “searching analysis,” the Court found no close resemblance between “the alleged objective” and “the actual purpose underlying the discriminatory classification.” Pursuing a similar inquiry here, we reach the same conclusion.

Neither recent nor distant history bears out Virginia’s alleged pursuit of diversity through single-sex educational options. In 1839, when the State established VMI, a range of educational opportunities for men and women was scarcely contemplated. Higher education at the time was considered dangerous for women; reflecting widely held views about women’s proper place, the Nation’s first universities and colleges-for example, Harvard in Massachusetts, William and Mary in Virginia-admitted only men. VMI was not at all novel in this respect: In admitting no women, VMI followed the lead of the State’s flagship school, the University of Virginia, founded in 1819. * * * *

Our 1982 decision in Mississippi Univ. for Women prompted VMI to reexamine its male-only admission policy. Virginia relies on that reexamination as a legitimate basis for maintaining VMI’s single-sex character. A Mission Study Committee, appointed by the VMI Board of Visitors, studied the problem from October 1983 until May 1986, and in that month counseled against “change of VMI status as a single-sex college.” Whatever internal purpose the Mission Study Committee served-and however well-meaning the framers of the report-we can hardly extract from that effort any state policy evenhandedly to advance diverse educational options. As the District Court observed, the Committee’s analysis “primarily focuse[d] on anticipated difficulties in attracting females to VMI,” and the report, overall, supplied “very little indication of how th[e] conclusion was reached.”

In sum, we find no persuasive evidence in this record that VMI’s male-only admission policy “is in furtherance of a state policy of ‘diversity.’” No such policy, the Fourth Circuit observed, can be discerned from the movement of all other public colleges and universities in Virginia away from single-sex education. That court also questioned “how one institution with autonomy, but with no authority over any other state institution, can give effect to a state policy of diversity among institutions.” A purpose genuinely to advance an array of educational options, as the Court of Appeals recognized, is not served by VMI’s historic and constant plan-a plan to “affor[d] a unique educational benefit only to males.” However “liberally” this plan serves the State’s sons, it makes no provision whatever for her daughters. That is not equal protection.


Virginia next argues that VMI’s adversative method of training provides educational benefits that cannot be made available, unmodified, to women. Alterations to accommodate women would necessarily be “radical,” so “drastic,” Virginia asserts, as to transform, indeed “destroy,” VMI’s program. Neither sex would be favored by the transformation, Virginia maintains: Men would be deprived of the unique opportunity currently available to them; women would not gain that opportunity because their participation would “eliminat[e] the very aspects of [the] program that distinguish [VMI] from . . . other institutions of higher education in Virginia.”

The District Court forecast from expert witness testimony, and the Court of Appeals accepted, that coeducation would materially affect “at least these three aspects of VMI’s program-physical training, the absence of privacy, and the adversative approach.” And it is uncontested that women’s admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets. It is also undisputed, however, that “the VMI methodology could be used to educate women.” The District Court even allowed that some women may prefer it to the methodology a women’s college might pursue. “[S]ome women, at least, would want to attend [VMI] if they had the opportunity,” the District Court recognized, and “some women,” the expert testimony established, “are capable of all of the individual activities required of VMI cadets.” The parties, furthermore, agree that “some women can meet the physical standards [VMI] now impose[s] on men.” In sum, as the Court of Appeals stated, “neither the goal of producing citizen soldiers,” VMI’s raison d’étre, “nor VMI’s implementing methodology is inherently unsuitable to women.”

In support of its initial judgment for Virginia, a judgment rejecting all equal protection objections presented by the United States, the District Court made “findings” on “gender-based developmental differences.” These “findings” restate the opinions of Virginia’s expert witnesses, opinions about typically male or typically female “tendencies.” For example, “[m]ales tend to need an atmosphere of adversativeness,” while “[f]emales tend to thrive in a cooperative atmosphere.” “I’m not saying that some women don’t do well under [the] adversative model,” VMI’s expert on educational institutions testified, “undoubtedly there are some [women] who do”; but educational experiences must be designed “around the rule,” this expert maintained, and not “around the exception.”

The United States does not challenge any expert witness estimation on average capacities or preferences of men and women. Instead, the United States emphasizes that time and again since this Court’s turning point decision in Reed v. Reed (1971), we have cautioned reviewing courts to take a “hard look” at generalizations or “tendencies” of the kind pressed by Virginia, and relied upon by the District Court. State actors controlling gates to opportunity, we have instructed, may not exclude qualified individuals based on “fixed notions concerning the roles and abilities of males and females.” Mississippi Univ. for Women; see J. E. B. (equal protection principles, as applied to gender classifications, mean state actors may not rely on “overbroad” generalizations to make “judgments about people that are likely to . . . perpetuate historical patterns of discrimination”).

It may be assumed, for purposes of this decision, that most women would not choose VMI’s adversative method. As Fourth Circuit Judge Motz observed, however, in her dissent from the Court of Appeals’ denial of rehearing en banc, it is also probable that “many men would not want to be educated in such an environment.” (On that point, even our dissenting colleague might agree.) Education, to be sure, is not a “one size fits all” business. The issue, however, is not whether “women-or men-should be forced to attend VMI”; rather, the question is whether the State can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.

The notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “self-fulfilling prophec[ies],” once routinely used to deny rights or opportunities. When women first sought admission to the bar and access to legal education, concerns of the same order were expressed. For example, in 1876, the Court of Common Pleas of Hennepin County, Minnesota, explained why women were thought ineligible for the practice of law. Women train and educate the young, the court said, which

“forbids that they shall bestow that time (early and late) and labor, so essential in attaining to the eminence to which the true lawyer should ever aspire. It cannot therefore be said that the opposition of courts to the admission of females to practice . . . is to any extent the outgrowth of . . . ‘old fogyism[.]’ . . . [I]t arises rather from a comprehension of the magnitude of the responsibilities connected with the successful practice of law, and a desire to grade up the profession.”

In re Application of Martha Angle Dorsett to Be Admitted to Practice as Attorney and Counselor at Law (Minn. C. P. Hennepin Cty., 1876), in The Syllabi, Oct. 21, 1876, pp. 5, 6 (emphasis added).

* * * * Medical faculties similarly resisted men and women as partners in the study of medicine. (“‘God forbid that I should ever see men and women aiding each other to display with the scalpel the secrets of the reproductive system . . . .’”)). More recently, women seeking careers in policing encountered resistance based on fears that their presence would “undermine male solidarity;” deprive male partners of adequate assistance; and lead to sexual misconduct. Field studies did not confirm these fears.

Women’s successful entry into the federal military academies, and their participation in the Nation’s military forces, indicate that Virginia’s fears for the future of VMI may not be solidly grounded. The State’s justification for excluding all women from “citizen-soldier” training for which some are qualified, in any event, cannot rank as “exceedingly persuasive,” as we have explained and applied that standard.

Virginia and VMI trained their argument on “means” rather than “end,” and thus misperceived our precedent. Single-sex education at VMI serves an “important governmental objective,” they maintained, and exclusion of women is not only “substantially related,” it is essential to that objective. By this notably circular argument, the “straightforward” test Mississippi Univ. for Women described, was bent and bowed.

The State’s misunderstanding and, in turn, the District Court’s, is apparent from VMI’s mission: to produce “citizen-soldiers,” individuals

“imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready . . . to defend their country in time of national peril.”

Surely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stature to men. Just as surely, the State’s great goal is not substantially advanced by women’s categorical exclusion, in total disregard of their individual merit, from the State’s premier “citizen-soldier” corps. Virginia, in sum, “has fallen far short of establishing the ‘exceedingly persuasive justification,’” Mississippi Univ. for Women, that must be the solid base for any gender-defined classification.


In the second phase of the litigation, Virginia presented its remedial plan-maintain VMI as a male-only college and create VWIL as a separate program for women. * * * * The United States challenges this “remedial” ruling as pervasively misguided.


A remedial decree, this Court has said, must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in “the position they would have occupied in the absence of [discrimination].” See Milliken v. Bradley (1977). The constitutional violation in this case is the categorical exclusion of women from an extraordinary educational opportunity afforded men. * * * *

Virginia chose not to eliminate, but to leave untouched, VMI’s exclusionary policy. For women only, however, Virginia proposed a separate program, different in kind from VMI and unequal in tangible and intangible facilities. Having violated the Constitution’s equal protection requirement, Virginia was obliged to show that its remedial proposal “directly address[ed] and relate[d] to” the violation, see Milliken, i.e., the equal protection denied to women ready, willing, and able to benefit from educational opportunities of the kind VMI offers. Virginia described VWIL as a “parallel program,” and asserted that VWIL shares VMI’s mission of producing “citizen-soldiers” and VMI’s goals of providing “education, military training, mental and physical discipline, character . . . and leadership development.” * * * * In exposing the character of, and differences in, the VMI and VWIL programs, we recapitulate facts earlier presented. * * * *

Virginia maintains that these methodological differences are “justified pedagogically,” based on “important differences between men and women in learning and developmental needs,” “psychological and sociological differences” Virginia describes as “real” and “not stereotypes.” The Task Force charged with developing the leadership program for women, drawn from the staff and faculty at Mary Baldwin College, “determined that a military model and, especially VMI’s adversative method, would be wholly inappropriate for educating and training most women.” * * * *

As earlier stated, generalizations about “the way women are,” estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description. Notably, Virginia never asserted that VMI’s method of education suits most men. It is also revealing that Virginia accounted for its failure to make the VWIL experience “the entirely militaristic experience of VMI” on the ground that VWIL “is planned for women who do not necessarily expect to pursue military careers.” By that reasoning, VMI’s “entirely militaristic” program would be inappropriate for men in general or as a group, for “[o]nly about 15% of VMI cadets enter career military service.”

In contrast to the generalizations about women on which Virginia rests, we note again these dispositive realties: VMI’s “implementing methodology” is not “inherently unsuitable to women;” “some women . . . do well under [the] adversative model;” “some women, at least, would want to attend [VMI] if they had the opportunity;” “some women are capable of all of the individual activities required of VMI cadets,” and “can meet the physical standards [VMI] now impose[s] on men.” It is on behalf of these women that the United States has instituted this suit, and it is for them that a remedy must be crafted, a remedy that will end their exclusion from a state-supplied educational opportunity for which they are fit, a decree that will “bar like discrimination in the future.”


In myriad respects other than military training, VWIL does not qualify as VMI’s equal. VWIL’s student body, faculty, course offerings, and facilities hardly match VMI’s. Nor can the VWIL graduate anticipate the benefits associated with VMI’s 157-year history, the school’s prestige, and its influential alumni network. * * * *

Virginia’s VWIL solution is reminiscent of the remedy Texas proposed 50 years ago, in response to a state trial court’s 1946 ruling that, given the equal protection guarantee, African Americans could not be denied a legal education at a state facility. See Sweatt v. Painter (1950). Reluctant to admit African Americans to its flagship University of Texas Law School, the State set up a separate school for Herman Sweatt and other black law students. As originally opened, the new school had no independent faculty or library, and it lacked accreditation. Nevertheless, the state trial and appellate courts were satisfied that the new school offered Sweatt opportunities for the study of law “substantially equivalent to those offered by the State to white students at the University of Texas.” * * * * More important than the tangible features, the Court emphasized, are “those qualities which are incapable of objective measurement but which make for greatness” in a school, including “reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige.” Facing the marked differences reported in the Sweatt opinion, the Court unanimously ruled that Texas had not shown “substantial equality in the [separate] educational opportunities” the State offered. Accordingly, the Court held, the Equal Protection Clause required Texas to admit African Americans to the University of Texas Law School. In line with Sweatt, we rule here that Virginia has not shown substantial equality in the separate educational opportunities the State supports at VWIL and VMI.


When Virginia tendered its VWIL plan, * * * * the Court of Appeals considered whether the State could provide, with fidelity to the equal protection principle, separate and unequal educational programs for men and women.

* * * * In sum, Virginia’s remedy does not match the constitutional violation; the State has shown no “exceedingly persuasive justification” for withholding from women qualified for the experience premier training of the kind VMI affords.


* * * * A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignored or excluded. VMI’s story continued as our comprehension of “We the People” expanded. There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the “more perfect Union.”

For the reasons stated, the initial judgment of the Court of Appeals is affirmed, the final judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas took no part in the consideration or decision of this case.
Chief Justice Rehnquist, concurring in judgment.

The Court holds first that Virginia violates the Equal Protection Clause by maintaining the Virginia Military Institute’s (VMI’s) all-male admissions policy, and second that establishing the Virginia Women’s Institute for Leadership (VWIL) program does not remedy that violation. While I agree with these conclusions, I disagree with the Court’s analysis and so I write separately.

* * * * [U]nlike the majority, I would consider only evidence that postdates our decision in {Mississippi University for Women v.} Hogan, and would draw no negative inferences from the State’s actions before that time. I think that after Hogan, the State was entitled to reconsider its policy with respect to VMI, and to not have earlier justifications, or lack thereof, held against it.

Even if diversity in educational opportunity were the State’s actual objective, the State’s position would still be problematic. The difficulty with its position is that the diversity benefited only one sex; there was single-sex public education available for men at VMI, but no corresponding single-sex public education available for women. When Hogan placed Virginia on notice that VMI’s admissions policy possibly was unconstitutional, VMI could have dealt with the problem by admitting women; but its governing body felt strongly that the admission of women would have seriously harmed the institution’s educational approach. Was there something else the State could have done to avoid an equal protection violation? Since the State did nothing, we do not have to definitively answer that question.

I do not think, however, that the State’s options were as limited as the majority may imply. * * * * In the words of Grover Cleveland’s second inaugural address, the State faced a condition, not a theory. And it was a condition that had been brought about, not through defiance of decisions construing gender bias under the Equal Protection Clause, but, until the decision in Hogan, a condition which had not appeared to offend the Constitution. Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation. I do not believe the State was faced with the stark choice of either admitting women to VMI, on the one hand, or abandoning VMI and starting from scratch for both men and women, on the other.

But, as I have noted, neither the governing board of VMI nor the State took any action after 1982. If diversity in the form of single-sex, as well as coeducational, institutions of higher learning were to be available to Virginians, that diversity had to be available to women as well as to men.

* * * * It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall calibre.

If a state decides to create single-sex programs, the state would, I expect, consider the public’s interest and demand in designing curricula. And rightfully so. But the state should avoid assuming demand based on stereotypes; it must not assume a priori, without evidence, that there would be no interest in a women’s school of civil engineering, or in a men’s school of nursing.

In the end, the women’s institution Virginia proposes, VWIL, fails as a remedy, because it is distinctly inferior to the existing men’s institution and will continue to be for the foreseeable future. VWIL simply is not, in any sense, the institution that VMI is. In particular, VWIL is a program appended to a private college, not a self-standing institution; and VWIL is substantially underfunded as compared to VMI. I therefore ultimately agree with the Court that Virginia has not provided an adequate remedy.

Justice Scalia, dissenting.

Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half. To achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people. As to facts: it explicitly rejects the finding that there exist “gender-based developmental differences” supporting Virginia’s restriction of the “adversative” method to only a men’s institution, and the finding that the all-male composition of the Virginia Military Institute (VMI) is essential to that institution’s character. As to precedent: it drastically revises our established standards for reviewing sex-based classifications. And as to history: it counts for nothing the long tradition, enduring down to the present, of men’s military colleges supported by both States and the Federal Government.

Much of the Court’s opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were-as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society’s law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men’s military academy-so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States-the old one-takes no sides in this educational debate, I dissent.


I shall devote most of my analysis to evaluating the Court’s opinion on the basis of our current equal-protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: “rational basis” scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. Strict scrutiny, we have said, is reserved for state “classifications based on race or national origin and classifications affecting fundamental rights,” Clark v. Jeter (1988). It is my position that the term “fundamental rights” should be limited to “interest[s] traditionally protected by our society,” but the Court has not accepted that view, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider “fundamental.” We have no established criterion for “intermediate scrutiny” either, but essentially apply it when it seems like a good idea to load the dice. So far it has been applied to content-neutral restrictions that place an incidental burden on speech {under the First Amendment} to disabilities attendant to illegitimacy, and to discrimination on the basis of sex.

I have no problem with a system of abstract tests such as rational-basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that “equal protection” our society has always accorded in the past. But in my view the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. For that reason it is my view that, whatever abstract tests we may choose to devise, they cannot supersede-and indeed ought to be crafted so as to reflect-those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts. More specifically, it is my view that “when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.” The same applies, mutatis mutandis, to a practice asserted to be in violation of the post-Civil War Fourteenth Amendment.

The all-male constitution of VMI comes squarely within such a governing tradition. Founded by the Commonwealth of Virginia in 1839 and continuously maintained by it since, VMI has always admitted only men. And in that regard it has not been unusual. For almost all of VMI’s more than a century and a half of existence, its single-sex status reflected the uniform practice for government-supported military colleges. Another famous Southern institution, The Citadel, has existed as a state-funded school of South Carolina since 1842. And all the federal military colleges-West Point, the Naval Academy at Annapolis, and even the Air Force Academy, which was not established until 1954-admitted only males for most of their history. Their admission of women in 1976 (upon which the Court today relies), came not by court decree, but because the people, through their elected representatives, decreed a change. In other words, the tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law.

And the same applies, more broadly, to single-sex education in general, which, as I shall discuss, is threatened by today’s decision with the cut-off of all state and federal support. Government-run nonmilitary educational institutions for the two sexes have until very recently also been part of our national tradition. “[It is] [c]oeducation, historically, [that] is a novel educational theory. From grade school through high school, college, and graduate and professional training, much of the Nation’s population during much of our history has been educated in sexually segregated classrooms.” Mississippi Univ. for Women v. Hogan (1982) (Powell, J., dissenting). These traditions may of course be changed by the democratic decisions of the people, as they largely have been.

Today, however, change is forced upon Virginia, and reversion to single-sex education is prohibited nationwide, not by democratic processes but by order of this Court. Even while bemoaning the sorry, bygone days of “fixed notions” concerning women’s education, the Court favors current notions so fixedly that it is willing to write them into the Constitution of the United States by application of custom-built “tests.” This is not the interpretation of a Constitution, but the creation of one.


To reject the Court’s disposition today, however, it is not necessary to accept my view that the Court’s made-up tests cannot displace longstanding national traditions as the primary determinant of what the Constitution means. It is only necessary to apply honestly the test the Court has been applying to sex-based classifications for the past two decades. It is well settled, as Justice O’Connor stated some time ago for a unanimous Court, that we evaluate a statutory classification based on sex under a standard that lies “[b]etween th[e] extremes of rational basis review and strict scrutiny.” We have denominated this standard “intermediate scrutiny” and under it have inquired whether the statutory classification is “substantially related to an important governmental objective.”

Before I proceed to apply this standard to VMI, I must comment upon the manner in which the Court avoids doing so. Notwithstanding our above-described precedents and their “‘firmly established principles,’” the United States urged us to hold in this case “that strict scrutiny is the correct constitutional standard for evaluating classifications that deny opportunities to individuals based on their sex.” The Court, while making no reference to the Government’s argument, effectively accepts it.

Although the Court in two places recites the test as stated in Hogan, which asks whether the State has demonstrated “that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives,” the Court never answers the question presented in anything resembling that form. When it engages in analysis, the Court instead prefers the phrase “exceedingly persuasive justification” from Hogan. The Court’s nine invocations of that phrase, and even its fanciful description of that imponderable as “the core instruction” of the Court’s decisions in J. E. B. v. Alabama ex rel. T. B., and Hogan, would be unobjectionable if the Court acknowledged that whether a “justification” is “exceedingly persuasive” must be assessed by asking “[whether] the classification serves important governmental objectives and [whether] the discriminatory means employed are substantially related to the achievement of those objectives.” Instead, however, the Court proceeds to interpret “exceedingly persuasive justification” in a fashion that contradicts the reasoning of Hogan and our other precedents.

That is essential to the Court’s result, which can only be achieved by establishing that intermediate scrutiny is not survived if there are some women interested in attending VMI, capable of undertaking its activities, and able to meet its physical demands. * * * *

Only the amorphous “exceedingly persuasive justification” phrase, and not the standard elaboration of intermediate scrutiny, can be made to yield this conclusion that VMI’s single-sex composition is unconstitutional because there exist several women (or, one would have to conclude under the Court’s reasoning, a single woman) willing and able to undertake VMI’s program. Intermediate scrutiny has never required a least-restrictive-means analysis, but only a “substantial relation” between the classification and the state interests that it serves. Thus, in Califano v. Webster (1977) (per curiam), we upheld a congressional statute that provided higher Social Security benefits for women than for men. We reasoned that “women . . . as such have been unfairly hindered from earning as much as men,” but we did not require proof that each woman so benefited had suffered discrimination or that each disadvantaged man had not; it was sufficient that even under the former congressional scheme “women on the average received lower retirement benefits than men.” The reasoning in our other intermediate-scrutiny cases has similarly required only a substantial relation between end and means, not a perfect fit. In Rostker v. Goldberg (1981), we held that selective-service registration could constitutionally exclude women, because even “assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans.” In Metro Broadcasting, Inc. v. FCC (1990), overruled on other grounds, Adarand Constructors, Inc. v. Peña (1995), we held that a classification need not be accurate “in every case” to survive intermediate scrutiny so long as, “in the aggregate,” it advances the underlying objective. There is simply no support in our cases for the notion that a sex-based classification is invalid unless it relates to characteristics that hold true in every instance.

Not content to execute a de facto abandonment of the intermediate scrutiny that has been our standard for sex-based classifications for some two decades, the Court purports to reserve the question whether, even in principle, a higher standard (i.e., strict scrutiny) should apply. “The Court has,” it says, “thus far reserved most stringent judicial scrutiny for classifications based on race or national origin . . .,” (emphasis added); and it describes our earlier cases as having done no more than decline to “equat[e] gender classifications, for all purposes, to classifications based on race or national origin” (emphasis added). The wonderful thing about these statements is that they are not actually false-just as it would not be actually false to say that “our cases have thus far reserved the ‘beyond a reasonable doubt’ standard of proof for criminal cases,” or that “we have not equated tort actions, for all purposes, to criminal prosecutions.” But the statements are misleading, insofar as they suggest that we have not already categorically held strict scrutiny to be inapplicable to sex-based classifications. And the statements are irresponsible, insofar as they are calculated to destabilize current law. Our task is to clarify the law-not to muddy the waters, and not to exact over-compliance by intimidation. The States and the Federal Government are entitled to know before they act the standard to which they will be held, rather than be compelled to guess about the outcome of Supreme Court peek-a-boo.

The Court’s intimations are particularly out of place because it is perfectly clear that, if the question of the applicable standard of review for sex-based classifications were to be regarded as an appropriate subject for reconsideration, the stronger argument would be not for elevating the standard to strict scrutiny, but for reducing it to rational-basis review. The latter certainly has a firmer foundation in our past jurisprudence: Whereas no majority of the Court has ever applied strict scrutiny in a case involving sex-based classifications, we routinely applied rational-basis review until the 1970’s. And of course normal, rational-basis review of sex-based classifications would be much more in accord with the genesis of heightened standards of judicial review, the famous footnote in United States v. Carolene Products Co. (1938), which said (intimatingly) that we did not have to inquire in the case at hand

whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

It is hard to consider women a “discrete and insular minorit[y]” unable to employ the “political processes ordinarily to be relied upon,” when they constitute a majority of the electorate. And the suggestion that they are incapable of exerting that political power smacks of the same paternalism that the Court so roundly condemns. Moreover, a long list of legislation proves the proposition false. See, e.g., Equal Pay Act of 1963, 29 U. S. C. Section(s) 206(d); Title VII of the Civil Rights Act of 1964, 42 U. S. C. Section(s) 2000e-2; Title IX of the Education Amendments of 1972, 20 U. S. C. Section(s) 1681; Women’s Business Ownership Act of 1988, Pub. L. 100-533, 102 Stat. 2689; Violence Against Women Act of 1994, Pub. L. 103-322, Title IV, 108 Stat. 1902.


With this explanation of how the Court has succeeded in making its analysis seem orthodox-and indeed, if intimations are to be believed, even overly generous to VMI-I now proceed to describe how the analysis should have been conducted. The question to be answered, I repeat, is whether the exclusion of women from VMI is “substantially related to an important governmental objective.”


It is beyond question that Virginia has an important state interest in providing effective college education for its citizens. That single-sex instruction is an approach substantially related to that interest should be evident enough from the long and continuing history in this country of men’s and women’s colleges. But beyond that, as the Court of Appeals here stated: “That single-gender education at the college level is beneficial to both sexes is a fact established in this case.” * * * *

While no one questioned that for many students a coeducational environment was nonetheless not inappropriate, that could not obscure the demonstrated benefits of single-sex colleges. For example, the District Court stated as follows:

“One empirical study in evidence, not questioned by any expert, demonstrates that single-sex colleges provide better educational experiences than coeducational institutions. Students of both sexes become more academically involved, interact with faculty frequently, show larger increases in intellectual self-esteem and are more satisfied with practically all aspects of college experience (the sole exception is social life) compared with their counterparts in coeducational institutions. Attendance at an all-male college substantially increases the likelihood that a student will carry out career plans in law, business and college teaching, and also has a substantial positive effect on starting salaries in business. Women’s colleges increase the chances that those who attend will obtain positions of leadership, complete the baccalaureate degree, and aspire to higher degrees.”

* * * * But besides its single-sex constitution, VMI is different from other colleges in another way. It employs a “distinctive educational method,” sometimes referred to as the “adversative, or doubting, model of education.” “Physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values are the salient attributes of the VMI educational experience.” No one contends that this method is appropriate for all individuals; education is not a “one size fits all” business. Just as a State may wish to support junior colleges, vocational institutes, or a law school that emphasizes case practice instead of classroom study, so too a State’s decision to maintain within its system one school that provides the adversative method is “substantially related” to its goal of good education. Moreover, it was uncontested that “if the state were to establish a women’s VMI-type [i.e., adversative] program, the program would attract an insufficient number of participants to make the program work,” and it was found by the District Court that if Virginia were to include women in VMI, the school “would eventually find it necessary to drop the adversative system altogether.” Thus, Virginia’s options were an adversative method that excludes women or no adversative method at all.

* * * * In these circumstances, Virginia’s election to fund one public all-male institution and one on the adversative model-and to concentrate its resources in a single entity that serves both these interests in diversity-is substantially related to the State’s important educational interests.


The Court today has no adequate response to this clear demonstration of the conclusion produced by application of intermediate scrutiny. Rather, it relies on a series of contentions that are irrelevant or erroneous as a matter of law, foreclosed by the record in this case, or both. * * * *

The Court argues that VMI would not have to change very much if it were to admit women. The principal response to that argument is that it is irrelevant: If VMI’s single-sex status is substantially related to the government’s important educational objectives, as I have demonstrated above and as the Court refuses to discuss, that concludes the inquiry. There should be no debate in the federal judiciary over “how much” VMI would be required to change if it admitted women and whether that would constitute “too much” change.

But if such a debate were relevant, the Court would certainly be on the losing side. The District Court found as follows: “[T]he evidence establishes that key elements of the adversative VMI educational system, with its focus on barracks life, would be fundamentally altered, and the distinctive ends of the system would be thwarted, if VMI were forced to admit females and to make changes necessary to accommodate their needs and interests.” Changes that the District Court’s detailed analysis found would be required include new allowances for personal privacy in the barracks, such as locked doors and coverings on windows, which would detract from VMI’s approach of regulating minute details of student behavior, “contradict the principle that everyone is constantly subject to scrutiny by everyone else,” and impair VMI’s “total egalitarian approach” under which every student must be “treated alike”; changes in the physical training program, which would reduce “[t]he intensity and aggressiveness of the current program”; and various modifications in other respects of the adversative training program which permeates student life. As the Court of Appeals summarized it, “the record supports the district court’s findings that at least these three aspects of VMI’s program-physical training, the absence of privacy, and the adversative approach-would be materially affected by coeducation, leading to a substantial change in the egalitarian ethos that is a critical aspect of VMI’s training.”

In the face of these findings by two courts below, amply supported by the evidence, and resulting in the conclusion that VMI would be fundamentally altered if it admitted women, this Court simply pronounces that “[t]he notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved.” The point about “downgrad[ing] VMI’s stature” is a strawman; no one has made any such claim. The point about “destroy[ing] the adversative system” is simply false; the District Court not only stated that “[e]vidence supports this theory,” but specifically concluded that while “[w]ithout a doubt” VMI could assimilate women, “it is equally without a doubt that VMI’s present methods of training and education would have to be changed” by a “move away from its adversative new cadet system.” And the point about “destroy[ing] the school,” depending upon what that ambiguous phrase is intended to mean, is either false or else sets a standard much higher than VMI had to meet. It sufficed to establish, as the District Court stated, that VMI would be “significantly different” upon the admission of women and “would eventually find it necessary to drop the adversative system altogether.”

Finally, the absence of a precise “all-women’s analogue” to VMI is irrelevant. * * * *

Although there is no precise female-only analogue to VMI, Virginia has created during this litigation the Virginia Women’s Institute for Leadership (VWIL), a state-funded all-women’s program run by Mary Baldwin College. I have thus far said nothing about VWIL because it is, under our established test, irrelevant, so long as VMI’s all-male character is “substantially related” to an important state goal. But VWIL now exists, and the Court’s treatment of it shows how far-reaching today’s decision is.


A few words are appropriate in response to the concurrence, which finds VMI unconstitutional on a basis that is more moderate than the Court’s but only at the expense of being even more implausible. * * * *


As is frequently true, the Court’s decision today will have consequences that extend far beyond the parties to the case. What I take to be the Court’s unease with these consequences, and its resulting unwillingness to acknowledge them, cannot alter the reality.


Under the constitutional principles announced and applied today, single-sex public education is unconstitutional. By going through the motions of applying a balancing test-asking whether the State has adduced an “exceedingly persuasive justification” for its sex-based classification-the Court creates the illusion that government officials in some future case will have a clear shot at justifying some sort of single-sex public education. * * * *

And the rationale of today’s decision is sweeping: for sex-based classifications, a redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny. * * * *

In any event, regardless of whether the Court’s rationale leaves some small amount of room for lawyers to argue, it ensures that single-sex public education is functionally dead. * * * *


There are few extant single-sex public educational programs. The potential of today’s decision for widespread disruption of existing institutions lies in its application to private single-sex education. Government support is immensely important to private educational institutions. * * * *

The issue will be not whether government assistance turns private colleges into state actors, but whether the government itself would be violating the Constitution by providing state support to single-sex colleges. * * * *

Justice Brandeis said it is “one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann (1932) (dissenting opinion). But it is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members’ personal view of what would make a “more perfect Union,” (a criterion only slightly more restrictive than a “more perfect world”), can impose its own favored social and economic dispositions nationwide. As today’s disposition, and others this single Term, show, this places it beyond the power of a “single courageous State,” not only to introduce novel dispositions that the Court frowns upon, but to reintroduce, or indeed even adhere to, disfavored dispositions that are centuries old. The sphere of self-government reserved to the people of the Republic is progressively narrowed.

* * * * Today’s decision does not leave VMI without honor; no court opinion can do that.

In an odd sort of way, it is precisely VMI’s attachment to such old-fashioned concepts as manly “honor” that has made it, and the system it represents, the target of those who today succeed in abolishing public single-sex education. The record contains a booklet that all first-year VMI students (the so-called “rats”) were required to keep in their possession at all times. Near the end there appears the following period-piece, entitled “The Code of a Gentleman” * * * * I do not know whether the men of VMI lived by this Code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.

Check Your Understanding


C. Sex/Gender and “Difference”

Note: Feminist Theories

While one could consider the “Sex/Gender” cases litigated under the Equal Protection Clause as flowing from feminism, similar to the manner in which the race and ethnicity cases flowed from the “Civil Rights movement,” there were several strands of feminism and feminists did not always agree on which cases should be litigated and what the outcome of those cases should be. In part, this was because there were laws that were deemed protective toward women as Justice Brennan noted in Frontiero: an “attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.” But feminists were also divided on the meanings of equality, sex, gender, difference, and the role of law. Further, feminists were divided along lines of class, race, ethnicity, as well as politics. This produced a complex theoretical environment, but the theoretical perspectives can be simplified into three major approaches.

Liberal feminism, sometimes called formal equality, advocates that the law should treat men and women equally. Under this view, even a law that advantages or accommodates women should be subject to the same rigor resulting in unconstitutionally.

Cultural feminism advocates that the law should recognize biological differences between men and women, and, more controversially should also recognize socio-biological differences between men and women. Under this view, a law that distinguishes between women and men might be subject to the same rigor but might be constitutional.

Radical feminism, sometimes called dominance-feminism, advocates that the law should recognize – – – and work toward eliminating – – – the subordination of women to men; and further that the law should question maleness as the default neutral standard. Under this view, a law that subordinates women should be unconstitutional; a law that works toward ending that subordination should be constitutional.

Sometimes, these three theoretical approaches all lead to the same result: the unconstitutionality of the provision in Frontiero might be an example. Other times, especially when the underlying issues involve reproductive capabilities, or the affective qualities arguably rooted in reproductive capabilities (e.g., women are more nurturing), or sex, or sexual violence (“violence against women”), the perspectives – – – which would not necessarily be advocated by “feminists” – – – support conflicting approaches and outcomes. Two controversial cases are illustrative.

In Geduldig v. Aiello, 417 U.S. 484 (1974), the Court considered an Equal Protection Clause challenge to a provision in the California Unemployment Compensation Disability program that excluded pregnancy and pregnancy-related conditions from coverage. In an opinion for the Court for Justice Stewart, reversing the lower court, the Court held the California program constitutional. In footnote 20, the Court explained:

The dissenting opinion {by Brennan, J., and joined by Douglas and Marshall, J.J.} to the contrary, this case is thus a far cry from cases like Reed v. Reed (1971), and Frontiero v. Richardson (1973), involving discrimination based upon gender as such. The California insurance program does not exclude anyone from benefit eligibility because of gender, but merely removes one physical condition—pregnancy—from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed and Frontiero. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.

The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.

In Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981), at issue was whether California’s “statutory rape” law, which defined unlawful sexual intercourse as “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years” violated the Equal Protection Clause. The Court upheld the statute. Writing for the plurality, Justice Rehnquist acknowledged the applicability of intermediate scrutiny standard of Craig v. Boren, but reasoned that the Equal Protection Clause does not “demand that a statute necessarily apply equally to all persons” or require “things which are different in fact . . . to be treated in law as though they were the same” and that the Court has upheld “statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.” Justice Rehnquist’s opinion concluded that the state’s interest in preventing teenage pregnancy was “strong.” As to the means chosen – – – the criminalization of only males – – – it reasoned:

Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly “equalize” the deterrents on the sexes.

Concurring in the opinion, Justice Blackmun stated that “I think too that it is only fair, with respect to this particular petitioner, to point out that his partner, Sharon, appears not to have been an unwilling participant in at least the initial stages of the intimacies that took place the night of June 3, 1978.” Blackmun’s footnote to that statement included testimony by Sharon from the trial transcript that included this:

“Q. You said that he hit you?”

“A. Yeah.”

“Q. How did he hit you?”

“A. He slugged me in the face.”

“Q. With what did he slug you?”

“A. His fist.”

“Q. Where abouts in the face?”

“A. On my chin.”

“Q. As a result of that, did you have any bruises or any kind of an injury?”

“A. Yeah.”

“Q. What happened?”

“A. I had bruises.”

“The Court: Did he hit you one time or did he hit you more than once?”

“The Witness: He hit me about two or three times.”

Consider how these different feminist theoretical perspectives are implicit in the Court’s most recent sex/gender equal protection decision, Sessions v. Morales-Santana.

Sessions v. Morales-Santana

582 U.S. ___ (2017)

Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in the judgment in part, in which Alito, J., joined. Gorsuch, J., took no part in the consideration or decision of the case.
Justice Ginsburg delivered the opinion of the Court.

This case concerns a gender-based differential in the law governing acquisition of U. S. citizenship by a child born abroad, when one parent is a U. S. citizen, the other, a citizen of another nation. The main rule appears in 8 U. S. C. § 1401(a)(7) (1958 ed.), now § 1401(g) (2012 ed.). Applicable to married couples, § 1401(a)(7) requires a period of physical presence in the United States for the U. S.-citizen parent. The requirement, as initially prescribed, was ten years’ physical presence prior to the child’s birth, § 601(g) (1940 ed.); currently, the requirement is five years prebirth, § 1401(g) (2012 ed.). That main rule is rendered applicable to unwed U. S.-citizen fathers by § 1409(a). Congress ordered an exception, however, for unwed U. S.-citizen mothers. Contained in § 1409(c), the exception allows an unwed mother to transmit her citizenship to a child born abroad if she has lived in the United States for just one year prior to the child’s birth.

The respondent in this case, Luis Ramón Morales-Santana, was born in the Dominican Republic when his father was just 20 days short of meeting § 1401(a)(7)’s physical-presence requirement. Opposing removal to the Dominican Republic, Morales-Santana asserts that the equal protection principle implicit in the Fifth Amendment entitles him to citizenship stature. We hold that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons “the equal protection of the laws.” Nevertheless, we cannot convert § 1409(c)’s exception for unwed mothers into the main rule displacing § 1401(a)(7) (covering married couples) and § 1409(a) (covering unwed fathers). We must therefore leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U. S.-citizen and one alien parent, wed or unwed. In the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination.


We first describe in greater detail the regime Congress constructed. * * * * {omitted}


Respondent Luis Ramón Morales-Santana moved to the United States at age 13, and has resided in this country most of his life. Now facing deportation, he asserts U. S. citizenship at birth based on the citizenship of his biological father, José Morales, who accepted parental responsibility and included Morales-Santana in his household.

José Morales was born in Guánica, Puerto Rico, on March 19, 1900. Puerto Rico was then, as it is now, part of the United States, and José became a U. S. citizen. After living in Puerto Rico for nearly two decades, José left his childhood home on February 27, 1919, 20 days short of his 19th birthday, therefore failing to satisfy § 1401(a)(7)’s requirement of five years’ physical presence after age 14. He did so to take up employment as a builder-mechanic for a U. S. company in the then-U. S.-occupied Dominican Republic.

By 1959, José attested in a June 21, 1971 affidavit presented to the U. S. Embassy in the Dominican Republic, he was living with Yrma Santana Montilla, a Dominican woman he would eventually marry. In 1962, Yrma gave birth to their child, respondent Luis Morales-Santana. While the record before us reveals little about Morales-Santana’s childhood, the Dominican archives disclose that Yrma and José married in 1970, and that José was then added to Morales-Santana’s birth certificate as his father. José also related in the same affidavit that he was then saving money “for the susten[ance] of [his] family” in anticipation of undergoing surgery in Puerto Rico, where members of his family still resided. In 1975, when Morales-Santana was 13, he moved to Puerto Rico, and by 1976, the year his father died, he was attending public school in the Bronx, a New York City borough.


In 2000, the Government placed Morales-Santana in removal proceedings based on several convictions for offenses under New York State Penal Law, all of them rendered on May 17, 1995. Morales-Santana ranked as an alien despite the many years he lived in the United States, because, at the time of his birth, his father did not satisfy the requirement of five years’ physical presence after age 14. An immigration judge rejected Morales-Santana’s claim to citizenship derived from the U. S. citizenship of his father, and ordered Morales-Santana’s removal to the Dominican Republic. In 2010, Morales-Santana moved to reopen the proceedings, asserting that the Government’s refusal to recognize that he derived citizenship from his U. S.-citizen father violated the Constitution’s equal protection guarantee. The Board of Immigration Appeals (BIA) denied the motion. The United States Court of Appeals for the Second Circuit reversed the BIA’s decision. Relying on this Court’s post-1970 construction of the equal protection principle as it bears on gender-based classifications, the court held unconstitutional the differential treatment of unwed mothers and fathers. To cure the constitutional flaw, the court further held that Morales-Santana derived citizenship through his father, just as he would were his mother the U. S. citizen. In so ruling, the Second Circuit declined to follow the conflicting decision of the Ninth Circuit in United States v. Flores-Villar (2008). We granted certiorari in Flores-Villar, but ultimately affirmed by an equally divided Court. Flores-Villar v. United States (2011) (per curiam). Taking up Morales-Santana’s request for review, we consider the matter anew.


Because § 1409 treats sons and daughters alike, Morales-Santana does not suffer discrimination on the basis of his gender. He complains, instead, of gender-based discrimination against his father, who was unwed at the time of Morales-Santana’s birth and was not accorded the right an unwed U. S.-citizen mother would have to transmit citizenship to her child. Although the Government does not contend otherwise, we briefly explain why Morales-Santana may seek to vindicate his father’s right to the equal protection of the laws. * * * * Morales-Santana is thus the “obvious claimant,” the “best available proponent,” of his father’s right to equal protection.


Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida (1961) (women are the “center of home and family life,” therefore they can be “relieved from the civic duty of jury service”); Goesaert v. Cleary (1948) (States may draw “a sharp line between the sexes”). Today, laws of this kind are subject to review under the heightened scrutiny that now attends “all gender-based classifications.” J. E. B. v. Alabama ex rel. T. B. (1994); United States v. Virginia, 518 U. S. 515 –556 (1996) (state-maintained military academy may not deny admission to qualified women).

Laws granting or denying benefits “on the basis of the sex of the qualifying parent,” our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee. Califano v. Westcott, (1979) (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers); Califano v. Goldfarb (1977) (plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors’ benefits available to widows); Weinberger v. Wiesenfeld (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child’s estate).

Prescribing one rule for mothers, another for fathers, § 1409 is of the same genre as the classifications we declared unconstitutional in Reed, Frontiero, Wiesenfeld, Goldfarb, and Westcott. As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an “exceedingly persuasive justification.” Virginia.


The defender of legislation that differentiates on the basis of gender must show “at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Virginia (quoting Mississippi Univ. for Women v. Hogan (1982)). Moreover, the classification must substantially serve an important governmental interest today, for “in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Obergefell v. Hodges (2015). Here, the Government has supplied no “exceedingly persuasive justification,” for § 1409(a) and (c)’s “gender-based” and “gender-biased” disparity.


History reveals what lurks behind § 1409. Enacted in the Nationality Act of 1940, § 1409 ended a century and a half of congressional silence on the citizenship of children born abroad to unwed parents. During this era, two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child.

Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child. “[D]ominance [of] the husband,” this Court observed in 1915, “is an ancient principle of our jurisprudence.” Mackenzie v. Hare (1915). Through the early 20th century, a male citizen automatically conferred U. S. citizenship on his alien wife. A female citizen, however, was incapable of conferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien. The family of a citizen or a lawfully admitted permanent resident enjoyed statutory exemptions from entry requirements, but only if the citizen or resident was male. And from 1790 until 1934, the foreign-born child of a married couple gained U. S. citizenship only through the father.

For unwed parents, the father-controls tradition never held sway. Instead, the mother was regarded as the child’s natural and sole guardian. At common law, the mother, and only the mother, was “bound to maintain [a nonmarital child] as its natural guardian.” 2 J. Kent, Commentaries on American Law (8th ed. 1854). In line with that understanding, in the early 20th century, the State Department sometimes permitted unwed mothers to pass citizenship to their children, despite the absence of any statutory authority for the practice.

In the 1940 Act, Congress discarded the father-controls assumption concerning married parents, but codified the mother-as-sole-guardian perception regarding unmarried parents. The Roosevelt administration, which proposed § 1409, explained: “[T]he mother [of a nonmarital child] stands in the place of the father . . . [,] has a right to the custody and control of such a child as against the putative father, and is bound to maintain it as its natural guardian.”

This unwed-mother-as-natural-guardian notion renders § 1409’s gender-based residency rules understandable. Fearing that a foreign-born child could turn out “more alien than American in character,” the administration believed that a citizen parent with lengthy ties to the United States would counteract the influence of the alien parent. Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: The alien father, who might transmit foreign ways, was presumptively out of the picture.


For close to a half century, as earlier observed, this Court has viewed with suspicion laws that rely on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” In particular, we have recognized that if a “statutory objective is to exclude or ‘protect’ members of one gender” in reliance on “fixed notions concerning [that gender’s] roles and abilities,” the “objective itself is illegitimate.”

In accord with this eventual understanding, the Court has held that no “important [governmental] interest” is served by laws grounded, as § 1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives. Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Correspondingly, such laws may disserve men who exercise responsibility for raising their children. In light of the equal protection jurisprudence this Court has developed since 1971, § 1409(a) and (c)’s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.


In urging this Court nevertheless to reject Morales-Santana’s equal protection plea, the Government cites three decisions of this Court: Fiallo v. Bell (1977), Miller v. Albright (1998) and Nguyen v. INS (2001). None controls this case.

The 1952 Act provision at issue in Fiallo gave special immigration preferences to alien children of citizen (or lawful-permanent-resident) mothers, and to alien unwed mothers of citizen (or lawful-permanent-resident) children. Unwed fathers and their children, asserting their right to equal protection, sought the same preferences. Applying minimal scrutiny (rational-basis review), the Court upheld the provision, relying on Congress’ “exceptionally broad power” to admit or exclude aliens. This case, however, involves no entry preference for aliens. Morales-Santana claims he is, and since birth has been, a U. S. citizen. Examining a claim of that order, the Court has not disclaimed, as it did in Fiallo, the application of an exacting standard of review.

The provision challenged in Miller and Nguyen as violative of equal protection requires unwed U. S.-citizen fathers, but not mothers, to formally acknowledge parenthood of their foreign-born children in order to transmit their U. S. citizenship to those children. After Miller produced no opinion for the Court, we took up the issue anew in Nguyen. There, the Court held that imposing a paternal-acknowledgment requirement on fathers was a justifiable, easily met means of ensuring the existence of a biological parent-child relationship, which the mother establishes by giving birth. Morales-Santana’s challenge does not renew the contest over § 1409’s paternal-acknowledgment requirement (whether the current version or that in effect in 1970), and the Government does not dispute that Morales-Santana’s father, by marrying Morales-Santana’s mother, satisfied that requirement.

Unlike the paternal-acknowledgment requirement at issue in Nguyen and Miller, the physical-presence requirements now before us relate solely to the duration of the parent’s prebirth residency in the United States, not to the parent’s filial tie to the child. As the Court of Appeals observed in this case, a man needs no more time in the United States than a woman “in order to have assimilated citizenship-related values to transmit to [his]child.” And unlike Nguyen’s parental-acknowledgment requirement, § 1409(a)’s age-calibrated physical-presence requirements cannot fairly be described as “minimal.”


Notwithstanding § 1409(a) and (c)’s provenance in traditional notions of the way women and men are, the Government maintains that the statute serves two important objectives: (1) ensuring a connection between the child to become a citizen and the United States and (2) preventing “statelessness,” i.e., a child’s possession of no citizenship at all. Even indulging the assumption that Congress intended § 1409 to serve these interests, neither rationale survives heightened scrutiny.


We take up first the Government’s assertion that § 1409(a) and (c)’s gender-based differential ensures that a child born abroad has a connection to the United States of sufficient strength to warrant conferral of citizenship at birth. The Government does not contend, nor could it, that unmarried men take more time to absorb U. S. values than unmarried women do. Instead, it presents a novel argument, one it did not advance in Flores-Villar.

An unwed mother, the Government urges, is the child’s only “legally recognized” parent at the time of childbirth. An unwed citizen father enters the scene later, as a second parent. A longer physical connection to the United States is warranted for the unwed father, the Government maintains, because of the “competing national influence” of the alien mother. Congress, the Government suggests, designed the statute to bracket an unwed U. S.-citizen mother with a married couple in which both parents are U. S. citizens, and to align an unwed U. S.-citizen father with a married couple, one spouse a citizen, the other, an alien.

Underlying this apparent design is the assumption that the alien father of a nonmarital child born abroad to a U. S.-citizen mother will not accept parental responsibility. For an actual affiliation between alien father and nonmarital child would create the “competing national influence” that, according to the Government, justifies imposing on unwed U. S.-citizen fathers, but not unwed U. S.-citizen mothers, lengthy physical-presence requirements. Hardly gender neutral, that assumption conforms to the long-held view that unwed fathers care little about, indeed are strangers to, their children. Lump characterization of that kind, however, no longer passes equal protection inspection.

Accepting, arguendo, that Congress intended the diverse physical-presence prescriptions to serve an interest in ensuring a connection between the foreign-born nonmarital child and the United States, the gender-based means scarcely serve the posited end. The scheme permits the transmission of citizenship to children who have no tie to the United States so long as their mother was a U. S. citizen continuously present in the United States for one year at any point in her life prior to the child’s birth. The transmission holds even if the mother marries the child’s alien father immediately after the child’s birth and never returns with the child to the United States. At the same time, the legislation precludes citizenship transmission by a U. S.-citizen father who falls a few days short of meeting § 1401(a)(7)’s longer physical-presence requirements, even if the father acknowledges paternity on the day of the child’s birth and raises the child in the United States. One cannot see in this driven-by-gender scheme the close means-end fit required to survive heightened scrutiny.


The Government maintains that Congress established the gender-based residency differential in § 1409(a) and (c) to reduce the risk that a foreign-born child of a U. S. citizen would be born stateless. This risk, according to the Government, was substantially greater for the foreign-born child of an unwed U. S.-citizen mother than it was for the foreign-born child of an unwed U. S.-citizen father. But there is little reason to believe that a statelessness concern prompted the diverse physical-presence requirements. Nor has the Government shown that the risk of statelessness disproportionately endangered the children of unwed mothers.

As the Court of Appeals pointed out, with one exception, nothing in the congressional hearings and reports on the 1940 and 1952 Acts “refer[s] to the problem of statelessness for children born abroad.” Reducing the incidence of statelessness was the express goal of other sections of the 1940 Act. The justification for § 1409’s gender-based dichotomy, however, was not the child’s plight, it was the mother’s role as the “natural guardian” of a nonmarital child. It will not do to “hypothesiz[e] or inven[t]” governmental purposes for gender classifications “post hoc in response to litigation.” Virginia.

Infecting the Government’s risk-of-statelessness argument is an assumption without foundation. “[F]oreign laws that would put the child of the U. S.-citizen mother at risk of statelessness (by not providing for the child to acquire the father’s citizenship at birth),” the Government asserts, “would protect the child of the U. S.-citizen father against statelessness by providing that the child would take his mother’s citizenship.” The Government, however, neglected to expose this supposed “protection” to a reality check. Had it done so, it would have recognized the formidable impediments placed by foreign laws on an unwed mother’s transmission of citizenship to her child.

Experts who have studied the issue report that, at the time relevant here, in “at least thirty countries,” citizen mothers generally could not transmit their citizenship to nonmarital children born within the mother’s country. “[A]s many as forty-five countries,” they further report, “did not permit their female citizens to assign nationality to a nonmarital child born outside the subject country with a foreign father.” In still other countries, they also observed, there was no legislation in point, leaving the nationality of nonmarital children uncertain. Taking account of the foreign laws actually in force, these experts concluded, “the risk of parenting stateless children abroad was, as of [1940 and 1952], and remains today, substantial for unmarried U. S. fathers, a risk perhaps greater than that for unmarried U. S. mothers.” One can hardly characterize as gender neutral a scheme allegedly attending to the risk of statelessness for children of unwed U. S.-citizen mothers while ignoring the same risk for children of unwed U. S.-citizen fathers.

In 2014, the United Nations High Commissioner for Refugees (UNHCR) undertook a ten-year project to eliminate statelessness by 2024. Cognizant that discrimination against either mothers or fathers in citizenship and nationality laws is a major cause of statelessness, the Commissioner has made a key component of its project the elimination of gender discrimination in such laws. In this light, we cannot countenance risk of statelessness as a reason to uphold, rather than strike out, differential treatment of unmarried women and men with regard to transmission of citizenship to their children.

In sum, the Government has advanced no “exceedingly persuasive” justification for § 1409(a) and (c)’s gender-specific residency and age criteria. Those disparate criteria, we hold, cannot withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens.


While the equal protection infirmity in retaining a longer physical-presence requirement for unwed fathers than for unwed mothers is clear, this Court is not equipped to grant the relief Morales-Santana seeks, i.e., extending to his father (and, derivatively, to him) the benefit of the one-year physical-presence term § 1409(c) reserves for unwed mothers.

There are “two remedial alternatives,” our decisions instruct, when a statute benefits one class (in this case, unwed mothers and their children), as § 1409(c) does, and excludes another from the benefit (here, unwed fathers and their children). “[A] court may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.” “[W]hen the ‘right invoked is that to equal treatment,’ the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” “How equality is accomplished . . . is a matter on which the Constitution is silent.” The choice between these outcomes is governed by the legislature’s intent, as revealed by the statute at hand.

Ordinarily, we have reiterated, “extension, rather than nullification, is the proper course.” Illustratively, in a series of cases involving federal financial assistance benefits, the Court struck discriminatory exceptions denying benefits to discrete groups, which meant benefits previously denied were extended. See e.g., * * * * Department of Agriculture v. Moreno (1973) (food stamps); Frontiero (plurality opinion) (military spousal benefits). Here, however, the discriminatory exception consists of favorable treatment for a discrete group (a shorter physical-presence requirement for unwed U. S.-citizen mothers giving birth abroad). Following the same approach as in those benefits cases—striking the discriminatory exception—leads here to extending the general rule of longer physical-presence requirements to cover the previously favored group. * * * *

The residual policy here, the longer physical-presence requirement stated in §§ 1401(a)(7) and 1409, evidences Congress’ recognition of “the importance of residence in this country as the talisman of dedicated attachment.” And the potential for “disruption of the statutory scheme” is large. For if § 1409(c)’s one-year dispensation were extended to unwed citizen fathers, would it not be irrational to retain the longer term when the U. S.-citizen parent is married? Disadvantageous treatment of marital children in comparison to nonmarital children is scarcely a purpose one can sensibly attribute to Congress.

Although extension of benefits is customary in federal benefit cases, all indicators in this case point in the opposite direction. Put to the choice, Congress, we believe, would have abrogated § 1409(c)’s exception, preferring preservation of the general rule.


The gender-based distinction infecting §§ 1401(a)(7) and 1409(a) and (c), we hold, violates the equal protection principle, as the Court of Appeals correctly ruled. For the reasons stated, however, we must adopt the remedial course Congress likely would have chosen “had it been apprised of the constitutional infirmity.” Although the preferred rule in the typical case is to extend favorable treatment, this is hardly the typical case. Extension here would render the special treatment Congress prescribed in § 1409(c), the one-year physical-presence requirement for U. S.-citizen mothers, the general rule, no longer an exception. Section 1401(a)(7)’s longer physical-presence requirement, applicable to a substantial majority of children born abroad to one U. S.-citizen parent and one foreign-citizen parent, therefore, must hold sway. Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, as the Government suggests, § 1401(a)(7)’s now-five-year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers.

The judgment of the Court of Appeals for the Second Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Gorsuch took no part in the consideration or decision of this case.
Justice Thomas, with whom Justice Alito joins, concurring in the judgment in part. {Given the conclusion that no relief was warranted, there was no need to find the statute unconstitutional.}


Check Your Understanding



1. Be prepared to articulate the standard of review for Equal Protection classifications based on sex/gender including the United States v. Virginia (VMI) language.

2. In Morales-Santana, the Court agreed with the challenger’s claim that the statute is unconstitutional and yet the challenger does not prevail. Why not?

3. Reconsidering the standard of review for sex/gender and anticipating other classifications, review Carolene Products footnote 4 and the evolving criteria for determining whether or not a classification is suspect (or quasi-suspect) as a prerequisite to determining the applicable standard of review.