Today in Supreme Court History: December 20, 1976

12/20/1976: Craig v. Boren decided.

Comments

[JoeFromtheBronx]

This is the "near beer" case which settled on a test required for gender discrimination. The Court fractured on the matter in an earlier case. This provided a clean majority by "discovering" a test in past cases as judges often do.

"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."

Justice Stevens concurred to note that "There is only one Equal Protection Clause. It requires every State to govern impartially."

There is also "one Free Speech Clause," which we can summarize in such broad terms too, but specific disputes lead to complications and crafting of doctrine to help apply rules to future cases. Or maybe we can just cite "history and tradition."

A few days ago, I cited a dissent recognizing an application of equal protection principles to sexual classifications from the 1910s. The Supreme Court as a whole said as much in Adkins v. Children's Hospital in the 1920s.

What about the Equal Rights Amendment, then pending? The amendment, in clear constitutional text not an application of a more general rule, set forth a strict sexual equality protection.

It is generally understood to apply "strict scrutiny." A tougher test. Also, though this is too often ignored, the text of the ERA is more open-ended than the Equal Protection Clause.

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

The Equal Protection Clause merely speaks of states denying equal protection. The ERA singles out one class in more open-ended language. I put aside the meaning of "equality of rights." The word "abridge" is added. It alone adds more weight.

The Equal Protection Clause & equality component of the Fifth Amendment Due Process Clause (and even more general provision) commands the government to regulate impartially in some sense. It is correct to recognize this to include gender equality or some such term.

The ERA would have done more, in clearer language. The Supreme Court did not somehow make it irrelevant though it did (along with American law overall) make it somewhat less important.