Key players in the conflict over civil rights 177
to discriminate among people if race is involved. The idea of a suspect classification
was first used in a case involving the internment of Japanese Americans during
World War II. In a controversial ruling, the Court said that the internment camps
were justified on national security grounds, making it one of the few instances in
which racial classification has survived strict scrutiny.^73 However, as noted earlier,
the Supreme Court overturned this ruling in a 2018 case involving President Trump’s
travel ban.^74
In 1976, the Court established a third test, the intermediate scrutiny test (see
Chapter 4), in a case involving the drinking age. In the early 1970s, some states had a
lower drinking age for women than for men on the “rational basis” that 18- to 20-year-
old women are more mature than men of that age. (States argued that women were
less likely to be drunk drivers and less likely to abuse alcohol than men are.) The
new intermediate scrutiny standard meant that the government’s policy must be
“substantially related” to an “important government objective” to justify the unequal
treatment of men and women, so the law was struck down.^75
The intermediate scrutiny test gives women stronger protections than the rational
basis test, but it is not as strong as strict scrutiny (see How It Works: Civil Rights). To use
the legal jargon, the gender distinction would have to serve an “important government
objective,” but not a “compelling state interest,” in order to withstand intermediate
sc r ut i ny.
In many instances, as with the Idaho case, the rights of women were strengthened
by this new standard of equal protection. However, in other instances women may
actually be more restricted by being treated the same as men. For example, in the
drinking age case, instead of dropping the drinking age for men to 18, states raised the
age for women to 21. Similarly, the Court struck down an Alabama divorce law in which
husbands but not wives could be ordered to pay alimony.^76 Arguably, women would
have been better off in these two specific instances under the old discriminatory laws
(because they could drink at 18 instead of 21 and did not have to pay alimony in some
states). However, the more aggressive application of the Fourteenth Amendment for
women was an important step in providing them with the equal protection of the laws,
as clearly shown in a Court decision that struck down the Virginia Military Institute’s
(VMI’s) male-only admission policy. The majority opinion stated that VMI violated
the Fourteenth Amendment’s equal protection clause because it failed to show an
“exceedingly persuasive justification” for its sex-biased admissions policy.^77
An important gender-equality case in 2017 concerned the law for determining
the citizenship of children born overseas to an unmarried couple when one parent is
a citizen and the other is not. Federal law requires a single father to have resided in
the United States for five years prior to his child’s birth in order for that child to have
U.S. citizenship, while a child born overseas to a single American mother would be
granted U.S. citizenship if the mother had lived continuously in the United States
for just one year prior to the child’s birth. The Court ruled that this gender-based
distinction was unconstitutional. As with earlier cases involving the drinking age
and alimony, the remedy in this case was to make things worse for women in the
short term—that is, rather than reducing the residency requirement for men from five
years to one, the Court increased it for women to match the longer period for men.
However, supporters of women’s rights applauded the decision for what it means for
gender equality in the long term. One expert on women’s rights noted that the gender
difference in this law was rooted in outdated notions of parental responsibilities, and
argued, “Romantic ideals about the uniqueness of motherhood perpetuate the notion
that women, rather than men, should assume responsibility for children. They also
contribute to negative stereotypes that diminish women as workers, wage earners,
and participants in public life.”^78
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