GPO-CONAN-2017-10-15.pdf

Hogan 458 us 718 72324 1982 but see michael m v

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v. Hogan, 458 U.S. 718, 723–24 (1982). But see Michael M. v. Superior Court, 450 U.S. 464, 468–69 (1981) (plurality opinion); id. at 483 (Justice Blackmun concur- ring); Rostker v. Goldberg, 453 U.S. 57, 69–72 (1981). The test is the same whether women or men are disadvantaged by the classification, Orr v. Orr, 440 U.S. at 279; Caban v. Mohammed, 441 U.S. at 394; Mississippi Univ. for Women v. Hogan, 458 U.S. at 724, although Justice Rehnquist and Chief Justice Burger strongly argued that when males are disadvantaged only the rational basis test is appropriate. Craig v. Boren, 429 U.S. at 217, 218–21; Califano v. Goldfarb, 430 U.S. at 224. That adop- tion of a standard has not eliminated difficulty in deciding such cases should be evi- dent by perusal of the cases following. 1900 In Frontiero v. Richardson, 411 U.S. 677 (1973), four Justices were pre- pared to hold that sex classifications are inherently suspect and must therefore be subjected to strict scrutiny. Id. at 684–87 (Justices Brennan, Douglas, White, and Marshall). Three Justices, reaching the same result, thought the statute failed the traditional test and declined for the moment to consider whether sex was a suspect classification, finding that inappropriate while the Equal Rights Amendment was pending. Id. at 691 (Justices Powell and Blackmun and Chief Justice Burger). Jus- tice Stewart found the statute void under traditional scrutiny and Justice Rehnquist dissented. Id. at 691. In Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9 (1982), Justice O’Connor for the Court expressly reserved decision whether a classification that survived intermediate scrutiny would be subject to strict scrutiny. 1901 Although their concurrences in Craig v. Boren, 429 U.S. 190, 210, 211 (1976), indicate some reticence about express reliance on intermediate scrutiny, Justices Pow- ell and Stevens have since joined or written opinions stating the test and applying it. E.g. , Caban v. Mohammed, 441 U.S. 380, 388 (1979) (Justice Powell writing the opinion of the Court); Parham v. Hughes, 441 U.S. 347, 359 (1979) (Justice Powell concurring); Califano v. Goldfarb, 430 U.S. 199, 217 (1977) (Justice Stevens concur- ring); Caban v. Mohammed, 441 U.S. at 401 (Justice Stevens dissenting). Chief Jus- tice Burger and Justice Rehnquist have not clearly stated a test, although their def- erence to legislative judgment approaches the traditional scrutiny test. But see Califano 2179 AMENDMENT 14—RIGHTS GUARANTEED
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or administrative scheme to determine if the purpose or objective is permissible and, if it is, whether it is important. Then, having ascertained the actual motivation of the classification, the Court en- gages in a balancing test to determine how well the classification serves the end and whether a less discriminatory one would serve that end without substantial loss to the government. 1902 Some sex distinctions were seen to be based solely upon “old notions,” no longer valid if ever they were, about the respective roles of the sexes in society, and those distinctions failed to survive even traditional scrutiny. Thus, a state law defining the age of majority as 18 for females and 21 for males, entitling the male child to sup-
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