Bringing Sex Discrimination Under Strict Scrutiny: The Need for an Equal Rights Amendment

This year, the United States celebrated the 100th anniversary of the Nineteenth Amendment’s ratification. [1] This amendment began a decades-long process of enfranchising women across the country. By enshrining, for both sexes, the right to vote, the Nineteenth Amendment formally recognized that women do indeed have a role in making political, legal, social, and economic decisions. However, while this amendment legitimized women’s presence in the public sphere, it did not fully grant them equal rights within it. 

This unresolved issue of legal equality was not lost on the women’s rights advocates of the 1920s. In 1923, suffragist Alice Paul proposed the Equal Rights Amendment (ERA), which would explicitly ban discrimination on the basis of sex and codify equality between women and men in the law. For the next fifty years, the ERA was unsuccessfully brought before Congress, eventually securing approval from the House and the Senate in 1972. Yet, with a sustained campaign against it in the late 1970s and 1980s, the ERA failed to meet the required threshold of thirty-eight state ratifications. It was never added to the Constitution. [2]

Without the ERA, litigation challenging sex discrimination primarily grounded its arguments in the Fourteenth Amendment, which guarantees “equal protection of the law” to all “persons born or naturalized in the United States.” [3] For instance, in Frontiero v. Richardson (1973), a case that challenged the denial of family benefits to female service members, then-attorney Ruth Bader Ginsburg argued that “discriminatory sex-based classifications” violated the equal protection clause. [4] Since the Nineteenth Amendment legitimizes women’s role in public affairs and the Fourteenth Amendment grants equal protection for all persons, one might question the necessity of the ERA. 

The amendment, however, continues to be relevant. In order to understand its continued importance, it is essential to note that the Fourteenth Amendment makes no explicit mention of sex. Landmark cases like Frontiero v. Richardson relied on the implicit assumption that women fell into the category of “persons” that were granted “equal protection of the law.” [5] Grounded in the Court’s “interpretive authority” rather than explicit constitutional protections, claims challenging sex-discrimination thus remain vulnerable, especially in an era of a divided Supreme Court that disagrees on what this implicit assumption should mean and whether to accept it at all. [6] Furthermore, legal precedents for these claims remain inconsistent: the Court has continually changed the test it uses to evaluate claims of sex-discrimination, leading to some discriminatory statutes being upheld, while other similar statutes have been struck down. Therefore, in order to consistently enforce gender equality under the law, the United States must adopt the ERA. Without this amendment, the Court will continue to evaluate sex-discrimination cases without a steady metric, thereby leaving problems of inequality unsolved. 

When deciding whether to strike down a discriminatory statute, the Supreme Court typically has weighed the rights of a citizen against the interests of the state. Since the late 1930s, the Court has utilized various tests to conduct such evaluations. 

The highest standard is the strict scrutiny test, where the state must prove a “compelling interest” for treating members of a specific social group differently from other social groups. Certain traits, including race and ethnicity, are called “suspect classes” or “suspect classifications” because they are immutable (i.e. intrinsic) to an individual’s identity and not controllable at will. [7] When a statute discriminates on the basis of any of these traits, it makes a “suspect classification” about a social group. It is in these cases that strict scrutiny is invoked. Since strict scrutiny places such a heavy burden on the state, the discriminatory statute in question is usually struck down by the Court. [8] 

On the other end of the spectrum is the rational basis test, which evaluates discrimination on the basis of age, economic status, and other factors not categorized as “suspect classifications.” When this test is invoked, the state has a much lower bar to pass in order for the Court to uphold a discriminatory statute: it must simply demonstrate that there is a “rational” link between the statute and government interest. [9]

Historically, sex-based discrimination has not fit neatly into this framework. When the Court first acknowledged sex-based discrimination in the 1970s, it placed sex discrimination in the middle of the spectrum: it was not considered obstructive enough to apply the strict scrutiny test, but merited closer consideration than the rational basis test would afford. [10] This in turn led to the Court’s adoption of the intermediate scrutiny test through its majority opinions in Reed v. Reed (1971) and Frontiero v. Richardson (1973). [11] Intermediate scrutiny required the state to prove that there was a “substantial relationship” between the goals of a statute and its “means”, which constitutes the manner in which the statute discriminated on the basis of sex. [12] Under Chief Justice Warren Burger, this three-tier approach of strict, intermediate, and rational-basis tests was used by the Court during the 1970s and 1980s. Yet, the Burger Court and the following Rehnquist and Roberts Courts have shown ambivalence as to how intermediate scrutiny should be applied, if at all. 

As a result, the Court has produced what appear to be inconsistent precedents, arriving at different judgements in near-identical situations. One should note, for example, the discrepancies between the Burger Court’s judgments in Kahn v. Shevin (1974) and in Weinberger v. Wiesenfeld (1975). In Kahn, the widower Mel Kahn could not access caregiver tax-benefits while caring for his aging mother. These benefits were only intended for women. [13] In Weinberger, a widower named Stephen Weisenfeld sued the government for denying him social security benefits as a sole caregiver seeking to raise his infant son. [14] Similar to Kahn’s circumstances, these benefits were denied to Weisenfeld because he was a man; the benefits were allocated solely for widows raising children, not widowers.

The similarities between these two cases are undeniable. First, in both cases, a man had taken on the unconventional role of a caregiver in his family and was denied access to benefits allocated for female caregivers. Second, in both cases, the state argued that the discriminatory statute was based on state interest in protecting women in a world where, the state claimed, women more frequently took on caregiver roles and lived in “economic dependency” on men. [15] Finally, in both cases, the intermediate-level scrutiny test was used to determine the Court’s decision. With these three essential commonalities, one would expect to see similar results. Yet, the decisions in Kahn and Weinberger differ significantly.

In Kahn, the Court upheld female caregivers’ tax benefits, while in Weinberger, the Court struck down the social security “widow’s pension.” [16] Even though the intermediate scrutiny test was used to evaluate both cases, the Court weighed the plaintiffs’ equal protection claims against state interests to “protect” women differently in Kahn than in Weinberger. After comparing these judgements, questions arise about where the Court will “draw the line” between statutes that represent a compelling state interest in supporting women socially and economically, and statutes that work to undermine claims to equality from both men and women. [17] As demonstrated, the intermediate scrutiny test ultimately leaves these questions unresolved.

To understand where this lack of clarity came from, one might turn back to the 1973 decision in Frontiero, which played an essential role in defining intermediate scrutiny. Servicewoman Sharon Frontiero had been unable to claim housing and medical benefits for her husband through her role in the armed forces even though these benefits were, by default, granted to the wives of male servicemembers. [18] Of the nine justices, eight agreed that Frontiero’s constitutional rights had been violated. However, these eight justices were heavily divided on the way in which they reached this judgement. 

In a plurality opinion signed by three other justices, Justice Brennan wrote that “sex… like race,” is a “suspect classification.” [19] By using this language in his opinion, Justice Brennan argued that statutes discriminating on the basis of sex should be evaluated with strict scrutiny. However, in a separate concurring opinion signed by two other justices, Justice Powell argued it was premature for the Court to declare sex a suspect class. Instead, he delegated that role to the ERA, which, at the time, was rapidly progressing through Congress and to the states. [20] It was this disagreement between Justice Brennan and Justice Powell that engendered intermediate scrutiny. Justice Powell did not oppose strict scrutiny for sex-discrimination in principle; rather, he indicated that intermediate scrutiny would be a temporary tier in the legal framework until the ERA provided a more robust protection for sex-based equality by explicitly naming sex a “suspect classification.”

This, of course, never happened. Ratification efforts for the ERA failed, and Justice Powell’s three-tiered approach was abandoned by Supreme Court majorities in recent decades. With the intermediate scrutiny test discarded, the Court returned to a two-tiered framework where race and ethnicity are evaluated under the strict scrutiny test, and sex, age, socio-economic status, and most other factors are evaluated under the rational-basis test. [21] As a result, inconsistencies between decisions like Weinberger and Kahn remain. Moreover, the rational basis test holds the state to a far lower standard than the intermediate and strict scrutiny tests, making it more likely that discriminatory statutes will be upheld in the present day. Individuals who experience sex-based discrimination are thus left in an increasingly vulnerable position.

The conflicting precedents and this demonstrated pattern of lowering the bar for sex discrimination vindicates the need for the ERA. Looking at the arguments laid forth by the late Ruth Bader Ginsburg in Frontiero, Kahn, and Weinberger, two crucial points become evident. First, without a “strict scrutiny” standard being applied, sex-discrimination can continue without consistent and effective regulation by the legal system. Second, in order for the Court to treat sex as a “suspect class” and subsequently evaluate sex-discrimination with strict scrutiny, the ERA’s ratification is necessary. Reflecting on Justice Powell’s concurring opinion for Frontiero later in 1973, Ginsburg observed that it was only after ratifying the ERA that “the hard task” of addressing sex discrimination in government statutes “will be undertaken in earnest.” [22] The late Justice Ginsburg thus correctly anticipated decades ago that, without the amendment, the Court would disagree on what standard to apply to sex-discrimination claims.

Half a century after Frontiero was decided and Justice Ginsburg made this appeal for the ERA, the amendment still remains unratified. Equality of the sexes is not explicitly guaranteed in the Constitution, giving the Supreme Court a blank check to decide what test to use or how seriously to take challenges against statutes that discriminate on the basis of sex. As we honor the centennial of the Nineteenth Amendment and the legacy of the late Justice Ginsburg, it seems fitting to think about the unresolved legal questions represented by the unratified ERA. To enshrine a century of advocates’ hard-fought vision of equal citizenship in the law and to ensure sex-discrimination is regulated consistently and effectively, the ERA must be ratified.

Edited by Tiffany Jing

[1] U.S. Const. amend. XIX § 1. Visited November 6, 2020. https://constitutionus.com/.

[2] Rebecca DeWolf, "The Equal Rights Amendment and the Rise of Emancipationism, 1932–1946," Frontiers: A Journal of Women Studies 38, no. 2 (2017): 47-48, https://www.jstor.org/stable/10.5250/fronjwomestud.38.2.0047.

[3] U.S. Const. amend. XIV § 1. Visited November 6, 2020. https://constitutionus.com/.

[4] Ruth Bader Ginsburg et al., Brief of the American Civil Liberties Union Amicus Curiae, legal brief no. 71-694, 4-6, October 1972, visited November 7, 2020, https://socialchangenyu.com/wp-content/uploads/2019/06/1971-Frontiero-and-Frontiero-v.-Laird-ACLU-Amicus.pdf.

[5] David M. O'Brien, "The Equal Protection of the Laws," in Civil Rights and Civil Liberties, 10th ed., vol. 2, Constitutional Law and Politics (New York, United States: W. W. Norton & Company, 2017), 1496-97.

[6] Melissa Murray, "The Equal Rights Amendment: A Century in the Making," NYU Review of Law and Social Change 43 (Fall 2018): 96, PDF.

[7] O'Brien, "The Equal," 1327.

[8] id.

[9] id at 1327-9.

[10] id at 1496-7.

[11] id.

[12] id at 1498.

[13] Kahn v. Shevin, 416 U.S. 351, 351 (Apr. 24, 1974). https://www.loc.gov/item/usrep416351/.

[14] Weinberger v. Weisenfeld, 420 U.S. 636, 640-642 (Mar. 19, 1975). https://supreme.justia.com/cases/federal/us/420/636/.

[15] Kahn v. Shevin, 416 U.S. 351, 354 (Apr. 24, 1974). https://www.loc.gov/item/usrep416351/.

[16] id at 352; Weinberger v. Weisenfeld, 420 U.S. 636, 642 (Mar. 19, 1975). https://supreme.justia.com/cases/federal/us/420/636/.

[17] Leslie Friedman Goldstein, The Constitutional Rights of Women: Cases in Law and Social Change, revised ed. (Madison, WI: University of Wisconsin Press, 1988), xii, Google Books.

[18] Frontiero v. Richardson, 411 U.S. 677, 677 (May 14, 1973). https://www.loc.gov/item/usrep411677/.

[19] id at 682.

[20] id at 692.

[21] O'Brien, "The Equal," 1330.

[22] Ruth Bader Ginsburg, "The Need for the Equal Rights Amendment," American Bar Association Journal 59, no. 9 (September 1973): 1016, https://www.jstor.org/stable/25726416.