Thursday, May 12, 2016

Gender Discrimination - Courts and Perspectives

The United States Constitution has little to say about the role of the federal court system. When I lecture on constitutional law, I often use a line from an old Ghostbuster's movie to describe what it says, which is essentially "yes have some." The federal courts and their jurisdiction has found greater definition over the years in the form of Congressional action (legislation) and the Court's own interpretations and assumption of powers in decisions like Marbury v. Madison

In the scheme of constitutional analysis, most of what we take for granted was created by the nine justices of the Supreme Court. This is elementally a Court function under the concept of common law. We inherited the concept of common law from the British, a tribute to our colonial history. Common law includes the concept of stare decisis, essentially meaning that a court hearing a case today should be guided, and in some instances bound, by decisions in similar previous cases. That is a concept of which some believe we have somewhat lost sight

I recently rode to an Inns of Court meeting with a jurist and fellow student of constitutional law. As we discussed various constitutional analysis, and the current challenges to workers' compensation, the conversation turned to the U.S. Supreme Court and various important decisions it has rendered. He asked me a pointed question, essentially "what Supreme Court decision do you take most issue with, in terms of its academic honesty." I struggled to name "a" case, but easily identified an analysis. Stated simply, the "intermediate scrutiny" standard of review which is employed by the Supreme Court is difficult to reconcile with the underpinnings of America.

The Court has established, over the years, a variety of standards by which it considers constitutionality of state action. When we discuss "state action" in constitutional law, that could be any government action, by a state legislature, a county commission, a city council, etc. No legislature or elected representative of the people or statute sets forth that this analysis, these "standards of review," is appropriate. The court decided itself that this would be it's methodology, and the rest, as they say, is history (or "precedent").

There are a variety of these standards of review, but for the sake of simplicity in this discussion, we focus on the three most common. The first is the most likely to lead to a determination that the statute is constitutional. This lowest level of review is called "rational basis." Under this standard, the court will presume that the state action is constitutional, and will place the burden on a challenging party to demonstrate that the government action has no rational basis.

In this setting, if insufficient evidence is put forward to demonstrate a lack of rational basis, the court will default to its presumption, and conclude the statute or state action to be constitutional. A law professor long ago cautioned me regarding such cases. He said that you might not want to turn down such a representation in such a case, but you might want to make sure you're paid in advance. One of his favorite Socratic inquiries throughout class was "would you take this case on a contingency fee?"

The next standard of which we should be aware is termed "strict scrutiny." Under the strict scrutiny and analysis, the court will presume the statute or state action to be unconstitutional. The burden will be upon the state to prove that the state action is necessary in order to satisfy some "compelling governmental interest," and that it is "narrowly tailored" to address or achieve that compelling interest. The "narrowly tailored" element is sometimes referred to as proof that there is "no other way" to address the "compelling" interest. Strict scrutiny is an very high burden to ask the government to prove.

What is the distinction that determines which of these two "bookends" of review is applied in a particular case?  The court has said that strict scrutiny is the appropriate analysis anytime a statute makes a distinction based upon the enunciated protections of the 14th amendment to the United States Constitution. 

The 14th amendment recognizes and protects the right of equal protection under the law regardless of race or national origin. So statutes or action that makes distinctions on race or national origin, as well as those that affect a "fundamental right" are reviewed using "strict scrutiny." Fundamental rights are at least those stated in the Constitution, but others have come to have the same fundamental label applied to them. The government actions that distinguish on the 14th amendment bases or affect "fundamental" rights are presumed to be unconstitutional. The burden is on the government to prove a compelling interest supports that classification distinction and that there is no other way to accomplish the interest. 

The vast majority of statutes or state action that do not differentiate between people based on race or national origin, or impair other fundamental rights, are reviewed by the court using the previously discussed "rational basis." Analysis.

For example, if a municipality passes and ordinance in which it concludes that no parade permits will be issued for demonstrations on Wednesdays. The court is likely to review this statute from the standpoint of "rational basis," and unless a challenge can demonstrate that the municipality has no rational reason for precluding parades on Wednesdays, the ordinance will survive constitutional review. 

Alternatively, if the same municipality passes an ordinance that no parade permits will be issued for Wednesday events sponsored by Hungarian organizations, or or organizations with markedly Hungarian membership, the ordinance would be reviewed under the "strict scrutiny" standard. In that instance, unless some compelling interest was demonstrated to justify such discrimination against those of Hungarian ancestry, the ordinance would in all likelihood fail constitutional review.

With this understanding of the two "bookends" of constitutional analysis, from the lowest standard to the strictest, are a variety of other standards enunciated by the court for various specific circumstances. The third for the purposes of this discussion is a standard labeled "intermediate scrutiny." Yes, this aptly named process, lies between the presumptively constitutional rational basis, and the presumptively unconstitutional strict scrutiny. It applies generally to two types of classification reviews.

Most commonly, intermediate scrutiny applies to state action or statute which differentiates based upon gender. Thus, if our hypothetical municipality passed an ordinance which precluded the issuance of parade permits for Wednesday events sponsored by women's organizations, or or organizations with markedly female membership, the statute would be reviewed under a less stringent standards than the statute that distinguishes based on race or national origin. The discrimination is arguably similar, making a distinction based upon a characteristic.

More succinctly, effectively, women in America are afforded less protection under the constitution by the intermediate review than is afforded by strict scrutiny for discrimination based on race and national origin. In the same manner, if laws discriminated against men, the review would be the same. This is all perhaps subject to become more confusing still in a world that increasingly recognizes gender as a fluid and ever-changing concept. It might be argued, remembering that the Supreme Court made up these standards, that there is no rational basis for such a distinction between race and gender discrimination.

The preamble to the United States Constitution enunciates the over-arching foundational themes of this (then) newly established country. The framers voiced that there were "truths" which were beyond argument, and were in fact "self evident." One of these is "that all men are created equally, they are endowed by their creator with certain inalienable rights."

It is also critical, to remember that these "inalienable" rights are not granted to Americans by their government. The American government is a product of the people, and derives both its legitimacy and it's power from "we the people." The court has repeatedly noted that the inalienable rights, while certainly including those listed in the constitution, are by no means limited to those listed in the constitution.

The court has extended federal protection to rights it describes as implied or "penumbral." An excellent example there of is the "right to privacy," in which the court has implied in such decisions as Roe v. Wade.

And thus a reasonable question is phrased, on what basis does the highest court in the land allow, and perhaps thereby implicitly encourage, gender discrimination? Is it rational to conclude that anyone supports the decreased recognition of fundamental rights on the basis of gender? There are those who will argue that change can occur in the Court's now established precedent of treating gender differently only through amendment to the Constitution. But there is also established precedent of courts eschewing precedent, avoiding the hard constitutional questions that do not lead to their desired results. 

The questions seem easy, should there be less respect for gender than for race, national origin and "fundamental rights" under the Constitution? Should the courts contort the law (redefine the question, or sidestep precedent) to find a way to reach a desired result like equal protection for gender, or should the people amend the Constitution to recognize "all" are created equal?

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