Amicus Curiae Brief — United States v. Virginia

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TABLE OF CONTENTS

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SUMMARY OF THE ARGUMENT ............. 1

ARGUMENT:

I. The impact of strict scrutiny for sex-based

classifications on military policy choices

counsels strongly against eliminating the well-

established standard of intermediate

oS Fieve eube ev ues 4 >< 2

A. The impact of strict scrutiny on

military policy choices. ...... 4

B. The relationship between the

principle of strict scrutiny and

the principle of deference to

military personnel decisions. ... 16

The impact of strict scrutiny on presently

settled questions of federal law counsels

strongly against eliminating the well-

established standard of intermediate

eS ie ae ee 21

RE 23

Employment Discrimination

he a8es e600 ee ess 24

ee 25

Homosexual Marriage ............ 25

Coustestee .. svc bee eee eee

Appendix -- List of Amici Curiae

TABLE OF AUTHORITIES

CASES:

Attorney General v. Massachusetts Interscholastic

Athletic Association,

393 N.E.2d 284 (Mass. 1979) ............ 25

Baehr v. Lewin,

74 Hawaii 645, 852 P.2d 44 (1993) ... 25, 26, 27

Baker v. United States (No. 94-453C United States

Court of Federal Claims) ............ 3,7,8

Bowen v. Gilliard,

CE 2

Brown v. Glines,

cece ee 2

Caban v. Mohammed,

cw ccc ccc tee eeee 21

Califano v. Goldfarb,

bebe cece 21

Califano v. Webster,

EEE 21

Califano v. Westcott, 7

EES 21

California Federal S. & L. Assn. v. Guerra,

I ong 6 4 KK 60 cee: 12

Campbell v. Beaughler,

519 F.2d 1307 (9th Cir. 1975) ........... 15

City of Cleburne v. Cleburne Living Center,

GGA csicetccveccovtevices 2, 20

Clark v. Jeter,

GS DD. GO GG wcccccccvcccececss 20

Coleman v. Maryland,

37 Md.App. 322, 377 A.2d 553 (1977) ...... 23

Craig v. Boren,

SiS. Sf) eee 20

Dailas v. Stanglin,

2, 2 & | Frere rereriy. & 19

Davis v. Passman,

ft f. PPrerererirrrs 21

Doe v. Maher,

515 A.2d 134 (Conn.Super. 1986) ......... 28

Fischer v. Department of Public Welfare,

482 A.2d 1137 (Pa.Cmwith. 1984)......... 28

Fischer v. Department of Public Welfare,

482 A.2d 1148 (Pa.Cmwith. 1984)......... 28

Fischer v. Department of Public Welfare,

509 Pa. 293, 502 A.2d 114 (Pa. 1984) ...... 28

Gilligan v. Morgan,

i. t St = Pree TTrriri 3, 17

Harris v. McRae,

Se 6 vopuel oui bo 6ceel 28

___ U.S. ___, 132 L.Ed.2d 487 (1995) ...... 24

Idaho v. Freeman,

529 F.Supp. 1107 (D.Idaho 1981) ......... 22

J.E.B. v. Alabama ex rel. T.B.,

35 SSS = ere 20

Johnson v. Robison,

DCMT +s cdebsnecooceseodess 2

Kadrmas v. Dickinson Public Schools,

8 8 20

Kelly v. Johnson,

PE, .. 36 ehdeeee dese eaa 15

Kirchberg v. Feenstra,

eee 20

Lalli v. Lalli,

i nS oh edges euke enees 20

Loving v. Virginia,

RN a ne 26

Lyng v. Castillo,

i . c6cbeubdsdb ued be see 2

Vv

Maher v. Roe,

as Saba a es een 27

Massachusetts Bd. of Retirement v. Murgia,

a 2,6

Mathews v. Eldridge,

GP SOE occ cccsceutdveecks 7

Michael M. v. Sonoma County Superior Court,

Se SOU vv ko Wh se eweurdice 1, 11

Mills v. Habluetzel,

a | RR ee 20

Mississippi Univ. for Women v. Hogan,

ps MNS orkid. Wisk Oda & dues 20

Moe v. Secretary of Administration,

382 Mass. 629, 417 N.E.2d 387 (1981) ..... 28

NOW v. Idaho,

See es ED 66 vk ctr tbeh ue eieus 22

Orloff v. Willoughby,

Es Si. css ck ic bc ce 17

Orr v. Orr,

Re ED cc 6d so ouwes ane 21

Personnel Administrator of Mass. vy. Feeney,

TE ee a a 21

Petrie v. Illinois State High School Association,

75 Ill.App.3d 980, 394 N.E.2d 855 (1979) ... 25

vi

Planned Parenthood v. Casey,

U.S. __, 120 L.Ed.2d 674 (1992)... 29, 30

Plyer v. Doe,

457 U.S. 202 (1982) .... 2... eee eee eres 20

Rostker v. Goldberg,

453 U.S. 57 (1981)... ...--- ee eee 12, 18, 20

Schlesinger v. Ballard,

419 U.S. 498 (1975) .. 2... ee eee ees 11

Shelley v. Kraemer, a

334 U.S. 1(1948) 2... cece cece ees

Singer v. Hara,

. 11 Wash.App. 247, 522 P.2d 1187 (1974) .... 26

Turner v. City of Baytown,

516 S.W.2d 270 (Tex.Civ.App. 1974) .....- 24

United States v. Young, ie

1 M.J. 433 (CMA 1976) ......---- eee

Weiss v. United States, a

114 S. Ct. 752 (1994) ...... 22 cee eee :

Wengler v. Druggists Mutual Ins. Co., Es

466 U.S. 142 (1980) ... 2... eee eee ees

ARMY REGULATIONS

Army Regulation 600-8-10, Leaves and Passes (1994) 13

vii

Army Regulation 600-9, Army Weight Control Program

ED hn cea he ee dled Che eke cae 13

Army Regulation 611-201, Military Occupational

Classification and Structure (1994) .......... 11, 12

Army Regulation 635-200, Enlisted Ranks Update

GUTER He aw Ve S ole bot kane dees ewok ck 13

Army Regulation 670-1, Wear and Appearance of Army

SD db d Ged b chee bk ere es. 14

Field Manual 21-20, Army Physical Fitness Training

OU 0.6.0s de cetbedsced eink (cbc. :. 13

CONSTITUTIONAL PROVISIONS

UNITED STATES CONSTITUTION, Article 1, Section8 ... 3

TE CO EIEN 6 oc 86:5 0 © Wie Bde aie 'a uaks 22

een, Ast. 2, GIP CIT og ok. viclosrs edb icc 22

Connecticut (Art. I, §20 (1974)................ 22

SG Ue ee PED Vb SS cee ccbweweawcns 22

a SS Pe errr Te ee 22

Louisiana, Art. I, §3 (1974) ..............0... 22

pepe, A: GST we bkiced IE eS 22

Massachusetts, Part I, Art. 1 (1976)............. 22

Viii

Montana, Art. 2, §4(1973) ...... 020 e reece 22

New Hampshire, Part I, Art. 2 (1975) ........... 22

New Mexico, Art. I], §18 (1973) ........ 0-50 u 22

Pennsylvania, Art. I, §28 (1971) ....-.....5 00s. 22

Temas, Ast. 1, GEO CIGTAD. ccc vcccvesveeces 22

Cet, Ast. 6, GE CUEDED . ccc cece tvccccsens 22

Virginia, Art. 1, §11 (1971)... 0. eee eee eee 22

Washington, Art. 31, §1 (1972) ... 2... eee eee 22

Wyoming, Art. 1, §3 (1896) ...... 6... eee eee 22

OTHER AUTHORITIES

"Buzz cut” next for Citadel's 1st woman, Detroit News (Aug.

Dae ee oe tod be apk de eb aw be 008 14

PO Pp re ee ere Pere Ty Te PCT TE TT ETT 14

90 A.L.R.3d 158, “Construction and Application of State

Equal Rights Amendments Forbidding the Determination of

Rights Based on Sex." 6.1 cree reer eeees 23

All-male VMI Faces Ruling; Supreme Court to Decide

Whether the School Can Bar Women, Air Force Times (Oct.

DL BOG +e sees dd cbVewrcovesewoctowe 11

Jonathan T. Ullyot, A Lesson in Military History from The

Citadel, Washington Times (Aug. 23, 1995) ....... 12

Justice Department hopes second cut saves cadet's hair,

Washington Times (Aug. 6, 1994) .............. 15

Karen Jowers, Women Have Been Treated Equally, Military

Says, Air Force Times (Nov. 27, 1995) ........... 8

Neff Hudson, Uniforms Cost More, But Allowances Rise, Air

Force Times (Sept. 18, 1995) .. 0... cc ccc ccs 14

Pregnancy, romance problems for carriers, Florida Times-

ee Be, HD an cccercccccceccceese 18

Report of the Presidential Commision on the Assignment of

Women in the Military [Commission]

ee a - 6 ab 5 o-oo a ob ew ae kc wd aks 12, 18

Same-Sex Marriage,” 10 New York Law School Journal 555

SA EG 6 4 604 ced ooo ie eR iees bass 27

Sex Equality and the Constitution: The State of the Art, 14

Women’s Rights Law Reporter 361 (Spring/Fall- 1992) 29

Summers, On Strategy: A Critical Analysis of the Viet Nam

SE ss 4 6 6 oS dod OER 6 Ole kek cles 18

Wendy Shalit, A Ladies' Room of One's Own, Commentary

es SU 6k Gh ob a Cb bak cae kook vec 5

“Equal Rights Provisions: The Experience Under State

Constitutions,” 65 Calif. L.R. 1086 (1977) ........ 23

“Marriage Rights: Homosexuals and Transsexuals,” 8 Akron

Re | Berreverr irri 27

“Same Sex Marriages and the Constitution,” 6 U.C.-Davis

eS | Beerrrrc cy er ere EE eeey 27

“The Legality of Homosexual Marriage,” 82 Yale L.J. 573

FSET Sree rT eee eee ee 27

“The State Equal Rights Amendments and Their Impact on

Domestic Relations Law,” 11 Family Law Quarterly 101

EP rrr Pty ry Pre re? eee ee eae 27

“The Texas Equal Rights Amendment in the Courts, 1972-77:

A Review and Proposed Principles of Interpretation,” 15

Houston L.R. 537 (1978) .......2 cece ee eeeee 27

INTEREST OF AMICI

Amici are educational groups concerned about the impact

of strict scrutiny for sex classifications on military readiness

and family law. Amici support the Commonwealth of

Virginia and VMI in this case.

SUMMARY OF THE ARGUMENT

This Court should reject the Government's aside that it

use this case to break new constitutional ground and declare

sex a suspect class. For the past twenty years, this Court has

applied a “carefully developed” intermediate standard of

review to sex-based classifications. Michael M. v. Sonoma

County Superior Court, 450 U.S. 464, 489 n.2 (1981)

(Brennan, J., dissenting). This Court always has recognized

that race and sex are different and, therefore, that they pose

different questions under the Equal Protection Clause. This

is because, unlike sex-based classifications, “racial

classifications by government always violate the Constitution,

for the simple reason that, so far as the Constitution is

concerned, people of different races are always similarly

situated.” Michael M., 450 U.S. at 477. In short, race and

sex have not been, and should not be, treated the same under

the Constitution for the simple reason that race and sex are

not the same. Jd. at 477-78. Thus, the more rigid approach

that inheres in strict scrutiny not only is not required by the

Constitution for sex-based classifications, it is not

appropriate. Besides the gaping holes in logic and lack of

legal portfolio for the Government's theory on “strict

scrutiny,” twenty years after it first fashioned intermediate

scrutiny, and more than a decade after the nation as a whole

rejected strict scrutiny for sex classifications by rejecting the

federal ERA, it frankly would be unseemly for this Court to

surmise today that the Constitution requires a stricter

l

standard.

Indeed, even in this case the Government does not

criticize the intermediate test as unworkable, defective, or a

failure in protecting certain groups, in any way. The

potential mischief in any attempt strictly to equate sex and

race, or the sexes, is seen in its impact on judicial deference

to military policy choices and in larger questions now

reserved to the States.

ARGUMENT

I. The impact of strict scrutiny for sex-based

classifications on military policy choices counsels strongly

against eliminating the well-established standard of

intermediate scrutiny.

Today the United States asks this Court to break new

constitutional ground. It appeals strongly for the right to

subject legislative classifications based on sex to the law’s

strictest scrutiny.

This Court repeatedly has emphasized that separation of

powers concerns militate against the creation of new protected

classes.’ City of Cleburne v. Cleburne Living Center, 473

U.S. 432, 441-42 (1985). This caution particularly is apt

when the classification arises in the military setting. See,

e.g., Brown v. Glines, 444 U.S. 348, 354-55 (1980), Weiss

' This Court repeatedly has refused to create new suspect classes.

See, e.g., Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313

(1976) (elderly); Cleburne, 473 U.S. at 442 (mentally retarded); Lyng v.

Castillo, 477 U.S. 635, 638 (1986) (“close relatives”); Bowen v. Gilliard,

483 U.S. 587, 601-03 (1987) (“families”); Johnson v. Robison, 415 U.S.

361, 375 n.14 (1974) (conscientious objectors).

2

v. United States, 114 S. Ct. 752 (1994). It is well-settled that

judicial deference---that is, deference in addition to the

deference that inheres in the rational basis test itself--- “is at

its apogee when reviewing congressional decision-making in

[the military context].” Jd. at 760-61. Indeed, it is

Congress, not the Judicial Branch, that has the explicit and

exclusive constitutional prerogative to “raise and support

Armies [and to] make Rules for the Government and

Regulation of the land and naval forces.” Article I, section

8, UNITED STATES CONSTITUTION.

Thus, the judiciary always has accorded great deference

to military decisions, on the separation of powers ground, that

"ultimate responsibility for [the armed forces] is appropriately

vested in branches of the government which are periodically

subject to electoral accountability." Gilligan v. Morgan, 413

U.S. 1, 10 (1973).

The matters underlying the judicial principle of deference

to military policy choices, then, are too weighty to be

disposed of by a footnote, as the Government attempts to do.

Br. for Pet. at n.23. The plain reality is that the

Government's invitation to impose strict scrutiny on sex-

based classifications will---indeed, philosophically, must---

affect both the judiciary's role in military policy-making and,

ultimately, military policy.” It cannot be gainsaid that the

Government today asks this Court to take a big step, that of

? Although the Government relies on its steadfast contention that

the instant case is not a military case, Br. for Pet. at n.23, that contention

is quite beside the point. What the Court decides today immediately will

affect policy and policy debates within the armed forces. See, e.g., Baker

v. United States, infra note 6 (discussing application of strict scrutiny of

sex-based classifications to a "reverse discrimination” claim brought by

male colonels and pending in the United States Court of Federal Claims).

3

creating a new suspect classification subject to strict scrutiny.

As always, but especially here where this new standard would

implicate strongly a venue committed wholly to a coordinate

branch of government, it is imperative to look hard before

one leaps.

A. The impact of strict scrutiny on military policy choices

Plainly, as detailed below, the principle of strict scrutiny,

applied to sex-based classifications, is in tension---if not

outright conflict---with judicial deference to military

decisions. These policies reflect, what might be called in the

vernacular, the facts of life. And how society arranges itself

in regard to those facts, to a large degree, reflects social

consensus, arrived at through the constantly fine-tuned social

contract that is the object of democracy. For example, the

Government cites privacy considerations that are furthered by

providing separate quarters and bathroom facilities for men

and women. It then states, in conclusory fashion, this

separate treatment furthers compelling governmental interests.

Br. for Pet. at n.25.

The Government's conclusion regarding its compelling

interests in individual privacy may have-merit, but it is at

least untried.’ Moreover, the fact the Government felt

> If the Government does have a compelling interest in how

society arranges itself in regard to cognizable differences between men and

women, the Government's charter goes back to that social consensus, not

to the Constitution. Plainly, the question of whether it is appropriate to

provide “separate arrangements for men and women while sleeping and

while using bathroom and shower facilities" is a quintessential social

question based on the fact there exist cognizable differences between men

and women that do not exist between members of various races. If the

social consensus changed tomorrow---and under this new contract "gender

privacy” was deemed a social evil---the Government's claim to a

4

compelled to style separate quarters for men and women as

furthering a compelling governmental interest itself

demonstrates that matters of general social consensus must be

revisited if strict scrutiny is applied to sex-based

classifications.

Indeed, the government's own analysis proves why it asks

too much when it invites this Court to apply strict scrutiny to

policy choices that reflect distinctions based on sex. What the

government gives, it immediately takes away.

ratcheting sex-based classifications up to strict scrutiny is

encapsulated in footnote 25 of the Government's brief:

Strict scrutiny of . . . classifications based on

sex will not necessarily be “fatal in fact." For

"government is not disqualified from acting in

response to it." Adarand Constructors, Inc. v.

Pena, 115 S. Ct. 2097, 2117 (1995). The

compelling interest in respecting individuals’

privacy would clearly justify separate

arrangements for men and women while

sleeping and while using bathroom and shower

compelling government interest in separate showers for men and women

might ring hollow. See, e.g., Wendy Shalit, A Ladies’ Room of One's

Qwn, Commentary at 33 (Aug. 1995). The point is not whether the

policy-maker might show a compelling reason for differentiating between

men and women in any given factual setting. Rather, the point is that

strict scrutiny would require such a reason in every setting, and that

requirement is unwarranted, both because the underlying distinctions are

rational more often than not and because the Constitution leaves these

common sense matters---and the right to change their collective mind

regarding them---to the people.

facilities. Br. for Pet. at n.25.

Clearly, the Government seeks a rule that sows the seeds

of its own destruction. To work, the law would be required

to keep in perfect tension, much like juggling four pins in the

air at all times, at least these tenets:

e Because distinctions between men and women are

irrational per se, strict scrutiny is required for policy choices

that reflect distinctions between men and women.‘

° Moreover, strict scrutiny requires individualized

scrutiny. That is, policies that reflect distinctions between

men and women fail strict scrutiny, for example, if one

woman does not conform to the characteristics of the class as

a whole.°

* Br. for Pet., ¢.g., at 44-45.

* Id. Plainly, the rule of law presupposes the creation of

categories. See, e.g., Massachusetts Bd. of Retirement, 427 U.S. at 314.

Imposition of strict scrutiny, however, presupposes the relevant category

is illicit. Therefore, it is incumbent on the policy-maker to make wholly

classifications are strictly scrutinized. In other words, as the Government

argues, Br. for Pet. at 44-45, it would be impermissible ever to make

policy choices based, ¢.g., om the fact that “job related physical

requirements would necessarily exclude the vast majority of women

Service members." Note 20 and accompanying text, infra. Indeed, the

Government argues that VMI's admission policy fails strict scrutiny

because:

[The lower] court . . . did not purport to find---nor

could [it] possibly have found---that a// women are less

aggressive or less confident than all men, or that VMI's

program was educationally inappropriate for all women.

... The court . . . approved the VWIL program on the

° But, if the Government determines that

“discrimination persists," the Government can impose sex-

based policies (such as affirmative action) to respond to that

discrimination, and, moreover, to respond to it on a class-

wide basis without regard to the merit of any individual in the

favored or disfavored class.°

differences between the sexes can justify denying ail

women admission to an educational program that some

fully qualified women want to enter... . Women whose

choices or abilities are different from those of the

“typical” or “average” woman cannot be denied an

important educational opportunity . . . solely because

most women would not be inconvenienced by that

Br. for Pet. at 44-45 (original emphasis). Thus, even if the vast majority

of women, for example, cannot meet standards for a particular position,

the Government urges that policy-makers nevertheless are required by the

Constitution to attempt to find that one woman who does meet standards

(or, in point of fact, to "gender-norm” the standards) and then, regardless

of cost to the organization, to accommodate her in that position. This

elaborate “logic” has no analogue in questions regarding race-based

classifications---precisely because this “logic” is without portfolio from the

Equal Protection Clause. Cf. Mathews v. Eldridge, 424 U.S. 319, 332

(1976) (one factor in the due process analysis is “the Government's

interest, including the function involved and the fiscal and administrative

bandon” entailed in the policy choice) (emphasis added).

* See, e.g., Baker v. United States (No. 94-453C United States

Court of Federal Claims). Baker was brought by 83 white male colonels

who were selected by an administrative board for involuntary carly

retirement from the Air Force in 1992. The secretarial memorandum of

instruction to the board required the board, upon completing its selections

for involuntary retirement, to render a report concerning the selection rate

for minorities and women. The board's report to the Secretary indicated

the files of minority and female officers had received preferential

treatment in determining which officers would be involuntarily retired and

which would continue on active duty.

In its supplemental motion for summary judgment in Baker, the United

7

° And, finally, even though strict scrutiny is required

States informed the court in a footnote:

The Government's November 16, 1995 brief in United States y.

Commonwealth of Virginia, 94-1941 (U.S.), asserts that strict

scrutiny should be applied to classifications that deny

opportunities to individuals based upon their sex. In so doing,

however, the Government's brief specifically distinguishes

executive and legislative branch programs and policies having to

do with the Federal Government's conduct and control of military

affairs. As to military affairs, the Government's brief suggested

that courts should coatinue tw defer to executive and legislative

branch judgments [citations omitted]. To the extent that our prior

briefs argued that gender distinctions are subject, at most, to an

intermediate level of judicial sCrutiny * * * we withdraw that

argument. As we have demonstrated, however, the military

judgments implicated in this case deserve the judicial deference

reflected in the above-cited cases, whatever level of scrutiny is

applied.

Baker v. United States (No. 94-453C United States Court of Federal

Claims) (Defendants' Supplemental Motion for Summary Judgment); but

of. note 9, infra.

Colonel Baker now argues, if strict scrutiny applies to sex-based

classifications, first, such scrutiny is inconsistent with judicial deference

to military policy choices and, secondly, nis reverse discrimination claim

now even is stronger since his selection for involuntary retirement was

based, in part, on his sex.

This controversy is no small point, especially in light of the scope and

magnitude of the various personnel decisions required to reduce the size

of the United States armed forces from its Cold War high. See, ¢.g.,

Karen Jowers, Women Have Been Treated Equally. Military Says, Air

Force Times (Nov. 27, 1995) ("women have fared about the same as men

in the reduction of the military forces during the drawdown, and

sometimes better, military officials say. * * * In the Air National Guard

.. . the number of women increased by two-tenths of a percentage point

from fiscal 1993 to 1994, from 13.9 percent to 14.1 percent, although the

Air Guard overall shrank by 3.1 percent during the period. * * * In the

Marine Corps, 1.9 percent of the officers who were selected for

[involuntary] retirement were women, even though women make up 3.6

percent of the Marine officer corps").

per se, existing policy distinctions between men and women

(such as separate quarters and bathroom and shower facilities)

women are compelling.’

It is not too strong to say, then, that what the Government

urges is not strict scrutiny, as a controlling legal principle for

reviewing sex-based policy choices, at all. Rather, it

advocates simply for a larger constitutional writ to equalize

various situations as it sees fit, not to provide equal protection

under the law.

In essence, the Government advocates for a constitutional

writ to impose strict scrutiny on policy choices that disfavor

a favored group and to insulate from strict scrutiny policy

choices that favor a favored group, upon no more principled

basis than the notion of "it all depends on whose ox is being

gored." But the real issue is whether the Constitution requires

that the law must say that “what is good for the goose is good

for the gander” and mean it in every instance.

The Government's view of "strict scrutiny" for sex-based

classifications may regard a fashionable notion of "equalized"

protection of the law, but it conforms nowhere to the Equal

Protection Clause. At best, and this is not great, the practical

result of the “strict scrutiny” urged by the Government is

"intermediate scrutiny plus"---plus more lawsuits, plus more

judicial intervention in the social contract, plus more

confusion (if not plain incoherence) in the law. Either way,

the outcome is not more beneficial, to either the regulated

class or the law, than the flexibility to countenance common

? Br. for Pet. at 0.25.

sense distinctions between men and women that inheres in the

present standard of review as intermediate scrutiny.

Indeed, it is because there exist legally and practically

cognizable differences between men and women that, even as

it urges this new standard of review, the Government attempts

to attenuate the searching judicial inquiry that is part and

parcel of strict scrutiny. It is counterintuitive to urge strict

scrutiny---not only the highest standard of review known to

the law, but, by its own philosophical design, a "hard and

fast" rule---for policy choices based on sex, but then to argue

that existing policy choices that reflect distinctions between

men and women are supported by compelling governmental

interests. This is a case where the proposed exceptions to the

proposed rule prove the inadvisability of the rule in the first

instance.

First, in this very case, the Government attempts to

straddle the hard and fast view of strict scrutiny and the

greater flexibility that inheres in intermediate review. It

argues that the decision to exclude women from VMI fails

strict scrutiny because distinctions between men and women

are irrational per se. Br. for Pet., e.g., at 44-46. But the

Government also argues, once women are admitted to VMI,

based on distinctions between men and women, the

government has a compelling reason to “justify,” for

example, separate quarters and facilities for men and women.

Br. for Pet. at n.25.

Likewise, unless the Government today urges a grand

remodeling of society, not to mention the armed forces, the

"strict scrutiny” advocated by the Government leaves policy-

makers with much explaining to do. The Army's decision to

10

exclude women from certain military schools,’ for example,

hardly could withstand strict scrutiny since the application of

that standard of review intrinsically concludes policy

distinctions between men and women are irrational in the

same way it is irrational to make distinctions between races.

- But, to follow the Government's reasoning, once women are

admitted to those military schools, the distinctions between

men and women that were irrational become so rational they

give rise to compelling governmental interests that justify

actually treating women differently than men.’ Br. for Pet.

* See, e.g., Army Regulation 611-201 at 13-15 (female soldiers

may not attend the Infantry, Armor, or Special Forces School). Other

schools or schooling may be closed to female soldiers based on the

prerequisite of certain military occupational specialties. See note 11,

infra.

* The Government is careful to concede only that "the phenomena

of sex and race discrimination differ from each other in some important

respects,” all the while it claims sex and race are interchangeable for

purposes of suspect classification. Br. for Pet. at 36; see also Ali-male

YMI Faces Ruling: Supreme Court to Decide Whether the School Can Bar

Women, Air Force Times (Oct. 23, 1995) ("[t}he Clinton administration

says the only way to guarantee women equal treatment is to admit them to

VMI. A separate ‘women's VMI’ begun this fall is as unlawful as

segregated schools once created for blacks and whites, administration

lawyers contend”).

As the Government's theory in the instant case proves, however,

the analogy between sex and race stops at the front gate. It would be

grotesque to suggest the armed forces “clearly [could] justify separate

arrangements for [blacks and whites] while sleeping and while using

bathroom and shower facilities," yet just such a conclusion makes

imminent good sense even to those advocating strict scrutiny for sex-based

classifications. See, ¢.g., Br. for Pet. at n.25; of. Br. of Amici Cornum

et al. at 14 ("[c)reating a separate barracks floor for women could

maintain [VMI's adversative methodology] for men and impose the same

[methodology] on the women vis-a-vis other women"); see also, ¢.g.,

Rostker, 453 U.S. 57; Schlesinger v. Ballard, 419 U.S. 498 (1975);

Michael M.,(upholding sex-based classifications under intermediate

1]

at n.25.

Under the rubric of strict scrutiny for sex-based

classifications, this is the only reasoning---never mind that it

is logically inconsistent and internally contradictory---that

could allow the armed forces to continue to fashion sex-based

distinctions that range from the sublime to the minute:

@ to draft men and not women;'®

@ to involuntarily assign men, but not women, to

direct combat positions;"'

scrutiny); cf. also California Federal S. & L. Assn. v. Guerra, 479 U.S.

464 (1981).

Why? Because sex and race have important and cognizable

differences. Those differences, which all relate to cognizable differences

between members of the class based on sex, render strict scrutiny workable

for race-based classifications and unworkable for sex-based classifications.

"© See Rostker v. Goldberg, 453 U.S. 57 (1981) (subjecting only

men and not women to involuntary military service justified by the fact

that only men were sent into direct combat); Report of the Presidential

Commission on the Assignment of Women in the Military [Commission]

(Aug. 28, 1992) at Findings 4.7-4.10 and 1.63 (Office of Secretary of

Defense testimony was “women were not in combat in the Gulf War”).

'' The Army, for example, presently excludes female officers

611-201, Military Occupational Classification and Structure (1994) at 4.

It also excludes enlisted women from 45 military occupational specialties,

for example, 11C (Indirect Fire Infantryman), 11M (Heavy Antiarmor

Weapons Infantryman), 12D (Engineer Tracked Vehicle Crewman), 13B

(Multiple Launch Rocket System/Lance Operations/Fire Direction

Specialist), 14B (Line of Sight-Forward-Heavy Crewmember), 18B

(Special Forces Weapons Sergeant), 45D (Self-propelled Field Artillery

Turret Mechanic), 45B (Bradley Fighting Vehicle System Turret

Mechanic), and 63E (Mi ABRAMS Tank System Mechanic). Army

Regulation 611-201 at Table 4-1.

12

® to provide separate quarters and facilities for

women;?

@ to require women to run two miles in 18 minutes

and 54 seconds and accomplish 50 sit-ups and 18

push-ups while men must run two miles in 15 minutes

and 54 seconds and accomplish 52 sit-ups and push-

ups;

®to provide "non-chargeable" leave for mothers, but

not fathers, after the birth of a child;'*

®to permit women to curtail their enlistment at their

request by reason of pregnancy while men have no

comparable grounds to request to early discharge;'°

@ to find women fit for duty with up to ten percentage

points more body fat than men;'®

2 See, e.g., note 20 and accompanying text, infra.

" Field Manual 21-20, Army Physical Fitness Training (1992) at

Chapter 14; see also, e.g., Jonathan T. Ullyot, A Lesson in Military

History from The Citadel, Washington Times (Aug. 23, 1995) (women

going through Officer Candidate School in the Marine Corps are provided

special ramps to help them negotiate the obstacle course; men are required

to march with their gear (increasing their rucksack weight by 30 pounds)

while women march with empty rucksacks and their gear is trucked to the

rifle range).

“ Army Regulation 600-8-10, Leaves and Passes (1994) at 13.

'S Army Regulation 635-200, Enlisted Ranks Update (1990) at

41-42 (pregnant soldiers granted discharge at their request).

‘© Army Regulation 600-9, Army Weight Control Program (1992)

at 4. News reports on Nancy Mellette, a woman who intends to apply for

13

@ to provide women with a military clothing

allowance that is larger than that provided to men;"’

®to permit women to have long hair while men must

have short hair or shave their heads;"*

admission to The Citadel, record this colloquy between Mellette and a

reporter: “Asked her weight, Mellette pluckily replied, ‘Don't you know

you're not supposed to ask women that question, sir?’” Mellette Ready

For Citadel, Associated Press (Sept. 6, 1995) (emphasis added).

" See, e.g., Neff Hudson, Uniforms Cost More. But Allowances

Rise, Air Force Times (Sept. 18, 1995) ("[the clothing] allowances vary

for men and women because they have different clothing. Generally,

women's uniforms are more expensive, so their allowances are bigger. .

. . For male Air Force members, the initial clothing allowance will be

$829.61 . . .. Female Air Force members will get an initial allowance of

$1,017.93 .. . The Army's initial allowance for male enlisted members

will be $958 in fiscal 1996 . . . for female soldiers, the initial allowance

will be $1,171.16 . . . Again, enhanced [Battle Dress Uniforms] are the

biggest change to the [clothing] list, although women also will get an —

improved neck tab that costs $4.25 more. Male Marines will get an initial

allowance of $923.30 . . . Female Marines will get an initial allowance of

$1,147.07").

'’ Army Regulation 670-1, Wear and Appearance of Army

Uniforms (1992) at 12 (grooming policies for men and women). The role

of cultural factors in different standards of appearance for men and women

is amenable to intermediate but not strict scrutiny, as seen in recent events

surrounding Shannon Faulkner's admission to The Citadel.

Upon obtaining court-ordered admission to The Citadel, Ms.

Faulkner sought exemption from The Citadel's traditional “knob” haircut.

“Buzz cut” next for Citadel's Ist woman, Detroit News (Aug. 11,

1994)("U.S. District Judge C. Weston Houck . . . said there was no

reason to spare [Ms. Faulkner's} hair. ‘In making this request for a

argued against any such special consideration. ‘If the haircut is the first

is the next thing Ms. Faulkner will find at The Citadel which is not

appropriately feminine?'") (emphasis added).

14

@ to allow women to wear earrings and make-up in

uniform while men may not;'°

Indeed, in his Memorandum dated January 13, 1994,

then-Secretary of Defense Les Aspin directed the military

services to “expand opportunities for women" with the

"following restrictions on [their] assignment: where the

Service Secretary attests that the costs of appropriate berthing

and privacy arrangements are prohibitive * * * [and] where

job related physical requirements would necessarily exclude

the vast majority of women Service members."”

The Department of Justice asked the district court to reconsider

allowing The Citadel to shave Ms. Faulkner's head, claiming the school

was proceeding “under the guise of gender-neutral grooming policies [that]

implement rules which altogether denigrate Ms. Faulkner's identity as a

woman.” The Citadel responded that "[t}he Justice Department motion

‘points up some of the paradoxes at work here. On the one hand they

espouse the position there are no significant cultural differences between

men and women that would justify separate treatment. But now that she's

admitted, they say there are cultural differences which mandate separate

Washington Times (Aug. 6, 1994) (emphasis added). Cf. Kelly v.

Johnson, 425 U.S. 238 (1976) (upholding grooming standards for police

departments); Campbell v. Beaughler, 519 F.2d 1307 (9th Cir. 1975),

United States v. Young, 1 M.J. 433 (CMA i976) (rejecting male

servicemembers’ claim that it violated the Constitution to require them,

but not female servicemembers, to have short hair).

'° Army Regulation 670-1 at 12 (cosmetics and jewelry) and 18

(handbags and purses authorized only for female soldiers).

7 The Naval Reserve Association's EXCOM BULLETIN,

December 1994, reported: “Ship modifications costs for the Women at Sea

Program are estimated to be $200 million or more. The estimated cost to

modify the carrier Nimitz alone is $2.6 million. The newer carriers . . .

much as $6 million each. The carrier Lincoln cost $1.9 million in 1994."

15

Memorandum from the Secretary of Defense, Subject: Direct

Ground Combat Definition and Assignment Rule (Jan. 13,

1994).

The point is clear: for purposes of determining the judicial

necessity for strict scrutiny in regard to sex-based

classifications, either the law brooks no differential treatment

between men and women or it brooks some. If it brooks

some---and even the Government concedes, and urges on this

Court, that it does---then intermediate scrutiny for sex-based

classifications remains not only appropriate wholly, but

necessary absolutely.

Indeed, it is apparent the Government seeks only the

intellectual solace of claiming strict scrutiny for sex-based

classifications. Demonstrably, the result it urges, in fact, is

no more and no less than the result under the intermediate

standard of review which, even under the Government's

theory, provides a consistent, coherent analytical framework

in which to resolve both the issue of whether women must be

admitted to VMI and the inherent issue of whether it is

permissible to accommodate them if they are admitted.

Another approach, which is neither consistent nor coherent,

cannot be commended to the law.

B. The relationship between the principle of strict

scrutiny and the principle of deference to military

personnel decisions.

In frank terms, the Government's attempt, in a footnote,

to preserve the military's prerogative to make the common

sense distinctions now permitted, without fanfare, under

intermediate scrutiny is a dodge in the first degree. As a

matter of principle and philosophy, the searching judicial

inquiry required by strict scrutiny cannot avoid diminishing

16

the scope of judicial deference to military policy choices

traditionally required under the law. Rather, strict scrutiny

of sex-based classifications would reduce that judicial

deference to a very thin reed indeed. And it would be this

thin reed upon which would rest "our entire constitutional

system." Gilligan, 413 U.S. at 10.

The plain fact of the matter is strict scrutiny for

classifications based on sex would require a compelling

governmental reason each time men and women are treated

differently. Since, particularly in the military, such policy

choices range from the sublime to the minute, courts quickly

would find themselves drawn in to the very task this Court

admonished the Judiciary not to do. As the Court pointed out

succinctly in Orloff v. Willoughby, "judges are not given the

task of running the army."*' Orioff v. Willoughby, 345 U.S.

83, 93 (1953).

While practical reasons for judicial deference to military

policy-making often are advanced and relied upon, the

principle of deference is more, and more important, than a

recognition of the practical reality that "it is difficult to

conceive of an area of governmental activity in which the

2 The question before the Court in this case is whether, through

the imposition of strict scrutiny, the Constitution requires the Judicial

Branch to demand the armed forces provide a compelling reason---

moreover, as the Government advocates, Br. for Pet. at 44, a compelling

reason narrowly tailored to each individual woman---for its policy choices.

Manifestly, since “strict scrutiny” means what the Government says it

does, that the military must prove a compelling reason why a particular

woman was not enlisted as a Multiple Launch Rocket System/Lance

Operations/Fire Direction Specialist, manifestly, upon imposition of strict

scrutiny, "judges [would be] running the army.” Orloff, 345 U.S. at 93;

cf. note 9, and accompanying text, with notes 10-20, and accompanying

text, supra.

17

courts have less competence” than military affairs. Rostker

v. Goldberg, 453 U.S. 57, 65 (1981). Rather, deference is

required by the Constitution itself.“ Jd. at 67. Indeed,

deference is a critical component of the Constitution's

separation of powers among the coordinate branches of

government. As the Court strongly has counseled, because

the military is under the exclusive constitutional control of the

Legislative Branch, deference to military judgment "underlies

2 The Founding Fathers’ decision to commit the armed forces,

through their elected representatives, to the control of the people concurs

with the theories of Clausewitz in his military classic, On War. Whether

the question is battle plans or personnel policies, Clausewitz observed that

"the task for the military theorist . . . is to develop a theory that maintains

a balance among the trinity of war---the people, the government, and the

[military]. A theory that ignores any one of them or seeks to fix an

arbitrary relationship between them would conflict with reality to such an

extent that for this reason alone it would be totally useless." Summers, On

Strategy: A Critical Analysis of the Viet Nam War (1984) at 36-37.

Thus, in striking that trinitarian balance, force composition and

deployment decisions must factor in physical and other practical

requirements, as well as recruiting and retention factors, especially in

regard to an all-volunteer force, political factors, and even make "rough

accommodations” regarding the remarkable dynamics of sexuality and

human nature. 4

These realities are not blithely glossed over. See, ¢.g.,

Commission at Finding 4.22 (re: Moskos Survey, Table 7 (33% of female

servicemembers surveyed said they “definitely would leave" the armed

forces if women were compelled to serve in direct combat; another 19%

said they “probably would leave" and 7% were “not sure” how such a

change would impact their desire to remain in service; only 14% said they

“definitely” would remain in service)); Pregnancy, romance problems for

carriers, Florida Times-Union (March 19, 1995) ("Last year the

Eisenhower became the Navy's first carrier with women as permanent

crew members; 415 now serve among the [4,967-member crew]”. . . . 38

Ike sailors became pregnant since the crew first went aboard nine months

ago; 14 pregnancies occurred in the first six months at sea).

our entire constitutional system."” Gilligan, 413 U.S. at 10.

The predicate for the rational basis test---the practical

reality that makes this deferential standard appropriate and

workable---is the fact, to use equal protection terminology,

that in the vast majority of policy choices there is no reason

to “suspect” the choice was illicit. Indeed, this Court has

held that a general rule that took a less flexible approach to

the Fourteenth Amendment gives the federal courts no power

to impose upon the States their view of what constitutes wise

. . . Social policy." Dallas v. Stanglin, 490 U.S. 19, 27

(1989).

Strict scrutiny, manifestly, is the diametric opposite of

the achievement of any legitimate state interest." Cleburne,

only to the Executive. They wrote into the Constitution specific

safeguards to ensure the people's control of the military." Summers,

supra note 22 at 37. This constitutional commitment of the armed forces

to the people's control is vouchsafed by the important principle of judicial

deference.

19

Intermediate scrutiny, which this Court has accorded to

sex,™ reflects the practical reality, based on cognizable

differences between men and women, that ordinarily those

differences between men and women may be reflected in

policy choices, but that there exists a somewhat greater-than-

usual potential that sex-based distinctions may not be rational.

In other words, intermediate scrutiny strikes a judicious

balance between the role of the courts in administering

constitutional parameters and the need to give policy-makers

appropriate leeway---in widely-ranging factual settings---to

account for the fact of life that men and women have certain

differences that must be addressed, and sometimes protected,

separately under the law. Thus, while intermediate scrutiny

recognizes that sometimes it is rational to make policy

distinctions based on sex, strict scrutiny, at least if applied

coherently, must state that such distinctions seldom (indeed,

in point of fact, never) are rational.” Otherwise---and as

* Quasi-suspect classification, and hence intermediate scrutiny ,

also has been accorded to illegitimacy. Lalli v. Lalli, 439 U.S. 259, 265

(1978).

* In 1976, this Court first announced that laws making

distinctions based on sex would be judged by intermediate, or heightened,

scrutiny. Such a classification cannot withstand constitutional challenge

unless it “is substantially related to the achievement of an important

governmental objective.” Craig v. Boren, 429 U.S. 190, 197 (1976).

Since Craig, this Court consistently has used the intermediate standard of

review for sex-based classifications, applying it or explaining it in at least

17 different decisions in the past 20 years. See J.E.B. v. Alabama ex rel.

T.B., S11 U.S. ___ (1994); Clark v. Jeter, 486 U.S. 456, 461 (1988);

Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 459 (1988);

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985);

Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-724, & 0.9

(1982); Plyer v. Doe, 457 U.S. 202, 217 n.16 (1982); Mills v. Habluetzel,

456 U.S. 91, 101, & n.8 (91982); Rostker v. Goldberg, 453 U.S. 57, 87

demonstrated in the instant case---the expanded role of the

judiciary in reviewing those policy choices plainly is

unwarranted.*®

Il. The impact of strict scrutiny on presently settled

questions of federal law counsels strongly against

eliminating the well-established standard of intermediate

scrutiny.

As demonstrated above, the enormity of the question the

Government puts to the Court is too great to be disposed of

ina fi hailing judicial def - dered mili

judgment. Moreover, the enormity of the question is too

great to be addressed without considering its judicial and

public policy consequences well beyond the impact of strict

' scrutiny for sex-based classifications on the armed forces.

By asking this Court to declare sex is a suspect

Classification, it is not too strong to state that the Government

urges the addition of an Equal Rights Amendment to the

Constitution by judicial fiat. The need for an Equal Rights

Amendment, however, has been asked and answered, in the

forum for such questions designated by the Constitution, and

(1981); Kirchberg v. Feenstra, 450 U.S. 455, 459 (1981); Wengler v.

Druggists Mutual Ins. Co., 466 U.S. 142, 150 (1980); Personnel

Administrator of Mass. v. Feeney, 442 U.S. 256, 286 (1979); Davis v.

Passman, 442 U.S. 228, 234 (1979); Califano v. Westcott, 443 U.S. 76,

85 (1979); Caban v. Mohammed, 441 U.S. 380, 388 (1979); Orr v. Orr,

440 U.S. 268, 279 (1979); Califano v. Webster, 430 U.S. 313, 316-317

(1977); and, Califano v. Goldfarb, 430 U.S. 199, 210-211 (1977).

** To highlight the different (and, heretofore, legally cognizable)

considerations that underlie classifications based on sex, one need only

substitute a racial minority for women in existing policy choices. See,

€.g., policy choices set out at notes 8, 10-21 and accompanying text.

21

the nation's answer, at least for now, was “no.” The nation

debated that issue during the 1970's and early 1980's, and

decided not to ratify the proposed Equal Rights Amendment

(ERA) to the Constitution.”’

versions of the ERA proposed for the federal constitution.

The experiences of the 17 state ERAs give some indication of

what might happen if this Court declared sex a suspect class.”

”” Congress proposed the ERA to the states on March 22, 1972.

soon ground to a halt. By the end of February 1974, 33 of the necessary

38 states had ratified the ERA. Only one state ratified the ERA in 1975,

none did in 1976, and the last state to ratify the ERA. Indiana, did so in

January 1977. Congress extended the ERA's deadline for ratification from

March 22, 1979 until June 30, 1982. No states ratified the ERA during

that time. During the original seven year deadline, five states that had

South Dakota and Tennessee). The states of Idaho and Arizona filed suit

in federal court in Idaho, seeking a declaration that states had the power

to rescind their ratification of proposed amendments, and that Congress

lacked the authority to extend the ratification deadline. The federal

district court ruled the rescissions were valid and that Congress had no

power to extend the deadline. idaho v. Freeman, 529 F.Supp. 1107

(D.Idaho 1981). This Court dismissed the appeal as moot. NOW v. Idaho,

459 U.S. 809 (1982).

** The seventeen states with ERAs in their state constitutions are

Alaska, Art. I, §3 (1972); Colorado, Art. 2, §29 (1972); Connecticut (Art.

1, $20 (1974); Hawaii, Art. 1, §3 (1972); Ilinois, Art. I, §18 (1971);

Louisiana, Art. 1, §3 (1974); Maryland, Art. 46 (1972); Massachusetts,

Part I, Art. | (1976); Montana, Art. 2, §4 (1973); New Hampshire, Part

1, Art. 2 (1975); New Mexico, Art. Il, §18 (1973); Pennsylvania, Art. I,

§28 (1971); Texas, Art. 1, §3a (1972); Utah, Art. 4, §1 (1896); Virginia,

Art. I, §11 (1971); Washington, Art. 31, §1 (1972) and Wyoming, Art.

1, §3 (1896). No state has added an ERA to its state constitution since

1976.

22

Family Law

Family law has been the greatest area of litigation under

the state ERAs.” Ironically, the typical ERA family law case

consisted of a man challenging a law that made a sex-based

obligation on men to provide for women (e.g., fathers must

or alimony to their families, etc.).°° The American Law

Reports commented on this phenomenon, saying:

In application, however, men often seem to

have benefited more than women from the

state ERA provisions, especially as concerns

family matters. This has resulted in women

losing some of the special protections they

previously enjoyed.”!

For example, a Maryland law that made it a crime for a

husband not to support his wife was declared unconstitutional

under the state ERA. The court ruled that such sex-based

legal distinctions were now prohibited.” Child support

becomes a joint responsibility of both parents, not just the

** See 90 A.L.R.3d 158, “Construction and Application of State

ee

on Sex.”

"See “Equal Rights Provisions: The Experience Under State

Constitutions,” 65 Calif. L.R. 1086, 1106-7 (1977).

* 90 A.L.R.3d at 168.

"Coleman v. Maryland, 37 Md. App. 322, 377 A.24 553 (1977).

2B

fathers, under various state ERA cases.” The state

legislatures have responded by passing new versions of these

laws that are sex-neutral.

Employment Discrimination Against Women

State ERAs have not been used much to battle

employment discrimination against women because of the

State action issue. Because private employers are not part of

the government, the state ERA does not affect their

employment practices. Generally, women use federal and

state civil rights statutes to bring employment discrimination

claims, not state ERAs.

The Equal Protection Clause has the same state action

requirement. “(T]he guarantees of free speech and equal

protection guard only against encroachment by the

government and ‘erec(t] no shield against merely private

conduct.” Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, _ U.S. ___, 132 L.Ed.2d 487,

499 (1995), quoting Shelley v. Kraemer, 334 U.S. 1, 13

(1948). Therefore, if this Court interprets the Equal

Protection Clause to protect sex as a suspect class, that

decision will only affect employment issues in the context of

government employees, not private businesses .™

* Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974); Cooper

v. Cooper, 513 S.W.2d 229 (Tex.Civ.App. 1974) and Kemp v. Kemp, 287

Md. 165, 411 A.2d 1028 (1980).

* In one of the few employment discrimination cases brought

under a state ERA, a Texas court upheld a city ordinance that set up

separate jobs named “policeman” and “policewoman,” because the duties

of the two jobs were different. Turner v. City of Baytown, 516 S.W.2d

270 (Tex.Civ.App. 1974).

24

Girls’ Athletics

The state ERA cases concerning high school girls’ athletics

show the same philosophical dilemmas involved in

accommodating women in the armed forces. Does one

advocate total integration of boys and girls on athletic teams,

to promote full equality? Or does one recognize that girls in

general do not have the same physical abilities of boys, so

girls and boys should have separate teams, so that girls will

not be sitting on the bench while boys play in the first string

positions on integrated teams? Also, does the constitutional

standard apply differently to contact sports than non-contact

sports? Does it promote equality to have a boy wrestling on

a mat with a girl?

The state courts have come down on both sides of these

questions. The Massachusetts Supreme Judicial Court ruled

unconstitutional female-only teams, because the state ERA

demands total equality.*° An Illinois court upheld female-only

teams, saying that women needed separate athletic teams in

order to have actual equality of athletic opportunity .** These

matters could become federal constitutional questions if this

Court declares sex to be a suspect class.

Homosexual Marriage

The Hawaii Supreme Court used its state ERA to apply

strict scrutiny to the state marriage laws, ruling that the state

must demonstrate at trial a compelling state interest to justify

*° Attorney General v. Massachusetts Interscholastic Athletic

Asseviation, 393 N.E.2d 284 (Mass. 1979)

* Petrie v. Illinois State High School Association, 75 W.App.3d

980, 394 N.E.2d 855 (1979).

25

its requirement that only one man and one woman car marry.

In Baehr v. Lewin, 74 Hawaii 645, 852 P.2d 44 (1993), the

Hawaii Supreme Court applied the state ERA, which it said

is “substantially identical with the proposed Equal Rights

Amendment of the United States Constitution,” Baehr, 852

P.2d at 65. That court ruled that the Hawaii marriage statute

contained a sex-based classification, because a man is legally

disabled from marrying another man because of his sex. The

Hawaii Supreme Court drew a parallel between sex and race,

and pointed to Court’s decision in Loving v. Virginia, 388

U.S. 1 (1967). If the state cannot limit who can get married

due to their race, and race is a suspect class, then the state

cannot limit who can get married because of their sex,

because sex is a suspect class under the state ERA. Baehr,

852 P.2d at 61-63. In the eyes of the Hawaii Supreme Court,

to prohibit same-sex marriages is the constitutional equivalent

of banning interracial marriages.

The Hawaii Supreme Court reviewed a decision by the

Washington Court of Appeals rejecting the argument that the

Washington state marriage law contained sex classifications

that violated the state ERA, preventing two homosexual males

from getting married. The two homosexual men had

challenged the state marriage law that limited marriage to

Opposite sex partners and argued that the law violated the

state ERA. The Washington Court of Appeals rejected that

argument, saying that two men or two women could not meet

the basic definition of marriage as one man and one woman.

See Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187

(1974). The Hawaii Supreme Court criticized this reasoning

as “tortured and conclusory sophistry.” Baehr, 852 P.2d at

63.

The Hawaii Supreme Court remanded the case for trial to

see if the state could demonstrate a compelling state interest

26

in limiting marriage to opposite-sex partners. The Hawaii

Supreme Court said:

On remand, in accordance with the “strict

scrutiny” standard, the burden will rest on [the

state] to overcome the presumption that [the

Hawaii marriage statute] is unconstitutional by

demonstrating that it furthers compelling state

interests and is narrowly drawn to avoid

unnecessary abridgements of constitutional

rights.

Baehr, 852 P.2d at 68. Commentators have clamored to

support the idea that laws limiting marriage to one man and

one woman are an unconstitutional sex-based classification,

deserving review under strict scrutiny.” If this Court declares

sex to be a suspect class under the Equal Protection Clause,

there could be federal constitutional challenges to the other 49

state laws that limit marriage to one man and one woman.

Abortion and Abortion Funding

This Court could inadvertently reopen the abortion issue

by declaring sex to be a suspect class. Although this Court

said there is no constitutional right to government funding of

abortions in such cases as Maher v. Roe, 432 U.S. 464 (1977)

*” See, e.g., “Same-Sex Marriage,” 10 New York Law or

Journal 555 (Spring, 1993); “The Legality of Homosexual Marriage, ”

Yale L.J. 573, 588 (1973); Sho ea Dead Mites Anenduano de

Courts, 1972-77: A Review and Proposed Principles of Interpretation,” 15

Houston L.R. 537, 628 (1978); “Marriage Rights: Homosexuals and

Transsexuals,” 8 Akron L.R. 369, 373 (1975); “Same Sex Marriages and

the Constitution,” 6 U.C.-Davis L.R. 275, 292 (1973) and “The State

Equal Rights Amendments and Their Impact on Domestic Relations Law,”

11 Family Law Quarterly 101, 115 (1977).

27

and Harris v. McRae, 448 U.S. 297 (1980), this contentious

issue might very well return to federal court because litigants

in various states have argued that their states’ ERAs compel

government funding of abortions.

In Doe v. Maher, 515 A.2d 134 (Conn.Super. 1986), a

Connecticut court ordered state funding of Medicaid abortions

because of the state ERA. Because only women can get

pregnant and have abortions, the court reasoned, then it

violates the state ERA not to fund their abortions:

Since only women become pregnant,

discrimination against pregnancy by not

funding abortion when it is medically

necessary and when all other medical expenses

are paid by the state for both men and women

is sex oriented discrimination.

Maher, 515 A.2d at 159. The Connecticut court ruled that the

state ERA required the law to be examined by “strict

scrutiny.” This is the standard the Solicitor General urges

this Court to adopt."

* Pennsylvania courts also addressed the issue of whether the

state ERA mandates government funding of abortions for poor women.

An intermediate appellate judge ruled that the ERA did indeed require

state funding of abortions. Fischer v. Department of Public Welfare, 482

A.2d 1137 (Pa.Cmwith. 1984). The full appellate court reversed, Fischer

v. Department of Public Welfare, 482 A.2d 1148 (Pa.Cmwith. 1984). The

Pennsylvania Supreme Court agreed that the state ERA does not mandate

government funding. Fischer v. Department of Public Welfare, 509 Pa.

293, 502 A.2d 114 (1984).

Additionally, the Massachusetts Supreme Judicial Court ruled that

the state government must pay for abortions for poor women. Moe v.

Secretary of Administration, 382 Mass. 629, 417 N.E.2d 387 (1981).

Although the plaintiffs argued that the state ERA required the state to pay

28

Commentators have sounded a similar theme by urging this

Court to declare sex a suspect class, and then root the right to

abortion in the Equal Protection Clause, rather than the right

to privacy. For example, one commentator said:

Roe v. Wade and Doe v. Bolton, the 1973

abortion decisions, for example, barely

mention women’s rights. They are not tied to

equal protection or equal rights theory.... A

broader frame for these decisions might have

made it more difficult for the Court to rule, as

it did stunningly in June 1977, that neither the

Constitution nor federal statute requires

Medicaid reimbursement for elective

abortions.

Ruth Bader Ginsburg, Sex Equality and the Constitution: The

State of the Art, 14 Women’s Rights Law Reporter 361, 362

(Spring/Fall 1992).

Plainly, this Court will be forced to revisit the abortion

funding decisions if this Court declares sex to be a suspect

class. This Court may also be opening up the entire abortion

controversy again and jeopardizing this Court’s decision in

Planned Parenthood v. Casey, ___ U.S. ___, 120 L.Ed.2d

674 (1992). In that case, this Court said state regulations on

abortion are unconstitutional only if they impose an “undue

burden” on that right. Casey, 120 L.Ed.2d at 715. The joint

opinion of O’Connor, Kennedy and Souter then upheld many

provisions of the law, such as the informed consent provision,

for abortions, the Massachusetts high court declined to rule on the ERA

argument and instead granted relief under another provision of the state

constitution. 417 N.E.2d at 397.

the parental consent portion and the 24-hour waiting period

for obtaining an abortion. Casey, 120 L.Ed.2d at 716-730.

But all of this could be reopened if the Court declares sex

to be a suspect class. As Justice Blackmun said in his opinion

in Casey:

Our precedents and the joint opinion's

principles require us to subject all non-de

minimis abortion regulations to strict scrutiny.

Under this standard, the Pennsylvania statute's

provisions requiring content-based counseling,

a 24-hour delay, informed parental consent,

and reporting of abortion-related information

must be invalidated.

Casey, 120 L.Ed.2d at 747. The only way to avoid reopening

the abortion issue is for the Court to refuse to rule that sex is

a suspect class.

CONCLUSION

This Court should not depart from the well-established

standard of intermediate scrutiny to decide this case for VMI.

Date: December 15, 1995

Respectfully submitted,

MELISSA WELLS-PETRY JORDAN W. LORENCE

Major, U.S. ARMY (RET.) Northstar Legal Center

Counsel of Record 2855 Anthony Lane S.

Center for Military Readiness Suite 500

Box 46374 Mpls., Minn. 55418

Washington, D.C. 20050 (612) 789-8811

(202) 393-2100

APPENDIX

Appendix

List OF AMICI CURIAE

The Center for Military Readiness (CMR) - The Center

for Military Readiness is a 501(c)(3) public policy

organization specializing in military personnel issues.

CMR supporters in all fifty states and on military bases

around the world include approximately equal numbers of

active duty and retired military people of all ranks and

branches of the service, plus civilians who advocate a

strong national defense and sound personnel policies that

enhance morale, unit strength and overall readiness.

Family Research Council - Family Research Council is an

independent, non-profit advocacy group dedicated to

ensuring that the interests of the family are considered and

respected in the formation of public policy. In 1995, the

Family Research Council organized the Military Readiness

Project, to participate in decisions made about the military,

because the armed forces play an influential role in our

national life. Family Research Council was founded in

1981 and is headquartered in Washington, D.C.

Minnesota Family Council - The Minnesota Family

Council is Minnesota’s largest nonprofit, nonpartisan,

profamily organization. Established in 1983, the

Minnesota Family Council addresses a wide array of issues

affecting the family though the media, the legislative and

legal system and by a statewide newspaper called the

Profamily News. The Minnesota Family Council is based

in Minneapolis.

Concerned Women for America - Concerned Women for

America is national, nonprofit organization representing

approximately 600,000 people. The purpose of CWA is to

Christian values through education, legal defense,

legislative programs, humanitarian aid and related

activities. CWA was founded in 1979 and is headquartered

in Washington, D.C.

Madison Project - The Madison Project is a membership

organization designed to promote conservative public

policy, and the election of social and economic

conservatives to public office. The organization is named

after James Madison who was not only a great Virginian,

but authored the Constitution in the spirit of individual

freedom and limited government. The Madison Project will

focus on Constitutional liberty, traditional values and

economic common sense, and will work to recruit

candidates, train grassroots workers, and promote public

based in Purcellville, Virginia.

Eagle Forum - Eagle Forum is a conservative, profamily

organization of volunteers engaged in public policy

making. We have chapters in all 50 states and are

concerned particularly with legislation and policies

affecting the family and gender relationships. Eagle Forum

is based in Alton, Illinois.

Free Congress Foundation -- Free Congress Foundation is

a non-profit foundation that seeks to advance fundamental

principles of judicial restraint and the rule of law. Among

these is consistent application of traditional rules of

constitutional interpretation. The proper role for courts is

settlement of legal disputes by faithful application of the

law to the facts of particular cases. Only then can social

policy develop as it should. Free Congress Foundation is

based in Washington, D.C.

'

Northstar Legal Center -- The Northstar Legal Center is a

division of the Minnesota Family Council. Its mission is to

promote traditional values and constitutional freedoms in

the legal arena. The Northstar Legal Center is based in