# Amicus Curiae Brief — United States v. Virginia

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0607%3A21

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 515

## Text

BEST AVAILABLE COPY

TABLE OF CONTENTS

pe ee ee i
TY OE os 'e S'WS' g 6/d b's wide b's 0 0 0 0 0% 1
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0607%3A21. Public record. Not legal advice.