The Equal Protection Guarantee and the Supreme
Court
Winter 2025
Leora Harpaz
Class 4 - Jan. 30, 2025
Bradwell v. State of Illinois - Justice Bradley's
Concurring Opinion:
“It certainly cannot be affirmed, as an historical fact,
that this has ever been established as one of the fundamental
privileges and immunities of the sex. On the contrary, the civil
law, as well as nature herself, has always recognized a wide
difference in the respective spheres and destinies of man and
woman. Man is, or should be, woman's protector and defender. The
natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the occupations of
civil life. The Constitution of the family organization, which
is founded in the divine ordinance as well as in the nature of
things, indicates the domestic sphere as that which properly
belongs to the domain and functions of womanhood. The harmony,
not to say identity, of interest and views which belong, or
should belong, to the family institution is repugnant to the
idea of a woman adopting a distinct and independent career from
that of her husband. So firmly fixed was this sentiment in the
founders of the common law that it became a maxim of that system
of jurisprudence that a woman had no legal existence separate
from her husband, who was regarded as her head and
representative in the social state, and, notwithstanding some
recent modifications of this civil status, many of the special
rules of law flowing from and dependent upon this cardinal
principle still exist in full force in most states. One of these
is that a married woman is incapable, without her husband's
consent, of making contracts which shall be binding on her or
him. This very incapacity was one circumstance which the Supreme
Court of Illinois deemed important in rendering a married woman
incompetent fully to perform the duties and trusts that belong
to the office of an attorney and counselor.
It is true that many women are unmarried and not affected
by any of the duties, complications, and incapacities arising
out of the married state, but these are exceptions to the
general rule. The paramount destiny and mission of woman are to
fulfill the noble and benign offices of wife and mother. This is
the law of the Creator. And the rules of civil society must be
adapted to the general constitution of things, and cannot be
based upon exceptional cases."
Amendment XIX:
The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any state
on account of sex.
Congress shall have power to enforce this article by
appropriate legislation.
Muller v. Oregon (1908):
“That woman's physical structure and the performance of
maternal functions place her at a disadvantage in the struggle
for subsistence is obvious. This is especially true when the
burdens of motherhood are upon her. Even when they are not, by
abundant testimony of the medical fraternity, continuance for a
long time on her feet at work, repeating this from day to day,
tends to injurious effects upon the body, and, as healthy
mothers are essential to vigorous offspring, the physical
wellbeing of woman becomes an object of public interest and care
in order to preserve the strength and vigor of the race.”
Still again, history discloses the fact that woman has
always been dependent upon man. He established his control at
the outset by superior physical strength, and this control in
various forms, with diminishing intensity, has continued to the
present. As minors, though not to the same extent, she has been
looked upon in the courts as needing especial care that her
rights may be preserved.”
Goesaert v. Cleary (1948):
Since bartending by women may, in the allowable legislative
judgment, give rise to moral and social problems against which
it may devise preventive measures, the legislature need not go
to the full length of prohibition if it believes that, as to a
defined group of females, other factors are operating which
either eliminate or reduce the moral and social problems
otherwise calling for prohibition. Michigan evidently believes
that the oversight assured through ownership of a bar by a
barmaid's husband or father minimizes hazards that may confront
a barmaid without such protecting oversight. This Court is
certainly not in a position to gainsay such belief by the
Michigan legislature. If it is entertainable, as we think it is,
Michigan has not violated its duty to afford equal protection of
its laws. We cannot cross-examine, either actually or
argumentatively, the mind of Michigan legislators, nor question
their motives. Since the line they have drawn is not without a
basis in reason, we cannot give ear to the suggestion that the
real impulse behind this legislation was an unchivalrous desire
of male bartenders to try to monopolize the calling.
Hoyt v. Florida (1961):
"Despite the enlightened emancipation of women from the
restrictions and protections of bygone years, and their entry
into many parts of community life formerly considered to be
reserved to men, woman is still regarded as the center of home
and family life. We cannot say that it is constitutionally
impermissible for a State, acting in pursuit of the general
welfare, to conclude that a woman should be relieved from the
civic duty of jury service unless she herself determines that
such service is consistent with her own special
responsibilities.”
Class 3 - Jan. 23, 2025
no posted material for this class
Class 2 - Jan. 16, 2025
Pictures of segregated facilities:
water fountain - http://images.slideplayer.com/1/239553/slides/slide_50.jpg
bus station waiting room - https://www.thenation.com/article/archive/steve-luxenberg-separate-plessy-ferguson-book-review/
movie theater -
https://upload.wikimedia.org/wikipedia/commons/e/e7/Rex_theatre.jpg
laundry - http://i.ytimg.com/vi/c-7eNRB2_0Q/hqdefault.jpg
Class 1 - Jan. 9, 2025
Text of Fifth Amendment:
"No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time of
War or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for
public use, without just compensation."
Text of the Fourteenth Amendment:
"All persons born or naturalized in the United States and subject
to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the
equal protection of the laws."
Equal Protection Tests (Standards of Review)
1. MINIMUM SCRUTINY TEST (also called rational basis test
and minimum rationality review)
Is the use of the classification rationally related to a
legitimate government interest?
(The challenger must prove that the use of the classification is
not rationally related to a legitimate government interest.)
2. INTERMEDIATE SCRUTINY TEST
Is the use of the classification substantially related to the
accomplishment of an important government interest?
(The government must prove that the use of the classification is
substantially related to the accomplishment of an important
governmental objective, but the government need not prove that
the use of the classification is absolutely necessary to the
accomplishment of the objective only that there is a close fit
between the use of the classification and the government's
objective.)
3. STRICT SCRUTINY TEST
Is the use of the classification necessary to the accomplishment
of a compelling government interest?
(The government must prove that it cannot achieve its compelling
objective without the use of the classification. In other words,
that there is no less discriminatory classification that the
government can employ in order to achieve its compelling
objective. Alternative less discriminatory classifications can
be ones that don't employ the suspect trait at all as well as
classifications that employ the trait, but to a lesser extent.
Sometimes the phrase narrowly tailored is used instead of the
word necessary, but in the context of strict scrutiny narrowly
tailored means necessary.)
Railway Express Agency, Inc. v. New York (1949):
1. "The local authorities may well have concluded that those who
advertise their own wares on their trucks do not present the
same traffic problem in view of the nature or extent of the
advertising which they use. It would take a degree of
omniscience which we lack to say that such is not the case. If
that judgment is correct, the advertising displays that are
exempt have less incidence on traffic than those of appellants.
We cannot say that that judgment is not an allowable one.
2. And the fact that New York City sees fit to eliminate from
traffic this kind of distraction but does not touch what may be
even greater ones in a different category, such as the vivid
displays on Times Square, is immaterial. It is no requirement of
equal protection that all evils of the same genus be eradicated
or none at all."
New Orleans v. Dukes (1976):
"The city could reasonably decide that newer businesses were
less likely to have built up substantial reliance interests in
continued operation in the Vieux Carre and that the two vendors
who qualified under the 'grandfather clause'—both of whom had
operated in the area for over 20 years rather than only
eight—had themselves become part of the distinctive character
and charm that distinguishes the Vieux Carre. We cannot say that
these judgments so lack rationality that they constitute a
constitutionally impermissible denial of equal protection."