GPO-CONAN-2017-10-15.pdf

1918 453 us 57 1981 joining the opinion of the court

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1918 453 U.S. 57 (1981). Joining the opinion of the Court were Justices Rehnquist, Stewart, Blackmun, Powell, and Stevens, and Chief Justice Burger. Dissenting were Justices White, Marshall, and Brennan. Id. at 83, 86. 1919 453 U.S. at 69–72, 78–83. The dissent argued that registered persons would fill noncombat positions as well as combat ones and that drafting women would add to women volunteers providing support for combat personnel and would free up men in other positions for combat duty. Both dissents assumed without deciding that ex- clusion of women from combat served important governmental interests. Id. at 83, 93. The majority’s reliance on an administrative convenience argument, it should be noted, id. at 81, was contrary to recent precedent. See discussion of Orr v. Orr , su- pra . 1920 450 U.S. 464 (1981). Joining the opinion of the Court were Justices Rehnquist, Stewart, and Powell, and Chief Justice Burger, constituting only a plurality. Justice Blackmun concurred in a somewhat more limited opinion. Id. at 481. Dissenting were Justices Brennan, White, Marshall, and Stevens. Id. at 488, 496. 2185 AMENDMENT 14—RIGHTS GUARANTEED
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ished males, but not females, for having sexual intercourse with a nonspousal person under 18 years of age. The plurality and the con- currence generally agreed, but with some difference of emphasis, that, although the law was founded on a clear sex distinction, it was justified because it served an important governmental interest— the prevention of teenage pregnancies. Inasmuch as women may be- come pregnant and men may not, women would be better deterred by that biological fact, and men needed the additional legal deter- rence of a criminal penalty. Thus, the law recognized that, for pur- poses of this classification, men and women were not similarly situ- ated, and the statute did not deny equal protection. 1921 Cases of “benign” discrimination, that is, statutory classifica- tions that benefit women and disadvantage men in order to over- come the effects of past societal discrimination against women, have presented the Court with some difficulty. Although the first two cases were reviewed under apparently traditional rational basis scrutiny, the more recent cases appear to subject these classifications to the same intermediate standard as any other sex classification. Kahn v. Shevin 1922 upheld a state property tax exemption allowing wid- ows but not widowers a $500 exemption. In justification, the state had presented extensive statistical data showing the substantial eco- nomic and employment disabilities of women in relation to men. The provision, the Court found, was “reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionately heavy bur- den.” 1923 And, in Schlesinger v. Ballard , 1924 the Court sustained a provision requiring the mandatory discharge from the Navy of a male officer who has twice failed of promotion to certain levels, which in Ballard’s case meant discharge after nine years of service, whereas
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