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Discrimination based on gender or sex is generally examined with
intermediate scrutiny . The standard of intermediate scrutiny was first applied by the Supreme Court in
Craig v. Boren (1976) and again in
Clark v. Jeter (1988).
Craig v. Boren , 429 U.S. 190 (1976);
Clark v. Jeter , 486 U.S. 456 (1988). It requires the government to demonstrate that treating men and women differently is “substantially related to an important governmental objective.” This puts the burden of proof on the
government to demonstrate why the unequal treatment is justifiable, not on the individual who alleges unfair discrimination has taken place. In practice, this means laws that treat men and women differently are sometimes upheld, although usually they are not. For example, in the 1980s and 1990s, the courts ruled that states could not operate single-sex institutions of higher education and that such schools, like South Carolina’s military college The Citadel, shown in
[link] , must admit both male and female students.
Mississippi University for Women v. Hogan , 458 U.S. 718 (1982);
United States v. Virginia , 518 U.S. 515 (1996). Women in the military are now also allowed to serve in all combat roles, although the courts have continued to allow the Selective Service System (the draft) to register only men and not women.
Matthew Rosenberg and Dave Philipps, “All Combat Roles Open to Women, Defense Secretary Says,”
New York Times , 3 December 2015;
Rostker v. Goldberg , 453 U.S. 57 (1981).
Discrimination against members of racial, ethnic, or religious groups or those of various national origins is reviewed to the greatest degree by the courts, which apply the
strict scrutiny standard in these cases. Under strict scrutiny, the burden of proof is on the government to demonstrate that there is a compelling governmental interest in treating people from one group differently from those who are not part of that group—the law or action can be “narrowly tailored” to achieve the goal in question, and that it is the “least restrictive means” available to achieve that goal.
Johnson v. California , 543 U.S. 499 (2005). In other words, if there is a non-discriminatory way to accomplish the goal in question, discrimination should not take place. In the modern era, laws and actions that are challenged under strict scrutiny have rarely been upheld. Strict scrutiny, however, was the legal basis for the Supreme Court’s 1944 upholding of the legality of the internment of Japanese Americans during World War II, discussed later in this chapter.
Korematsu v. United States , 323 U.S. 214 (1944). Finally,
affirmative action consists of government programs and policies designed to benefit members of groups historically subject to discrimination. Much of the controversy surrounding affirmative action is about whether strict scrutiny should be applied to these cases.
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