THE POLICY-MAKING PROCESS AND CIVIL RIGHTS| 407The racial redistricting cases illustrate that the Supreme Court is increasingly
activist in civil rights. It is generally unwilling to defer to any other branch of gov-
ernment that disagrees with its view of discrimination and equal protection (see
Chapter 12 for a discussion of judicia l activism). In some periods, judicia l activism
may serve to further civil rights, as in the 1950s and 1960s, or to limit them, as in
the recent period.WOMEN’S RIGHTS
The Supreme Court has also been central in determining women’s civil rights.
Until relatively recently the Court did not apply the Constitution to women, despite
the Fourteenth Amendment’s language that states may not deny any person the
equal protection of the laws. Apparently, women were not regarded as people when
it came to political and economic rights in the nineteenth and early twentieth cen-
turies. These protectionist notions were fi nally rejected in three cases between
1971 and 1976, when the Court made it much more diffi cult for states to treat men
and women diff erently.
The fi rst case involved an Idaho state law that gave a man priority over a woman
when they were otherwise equally entitled to execute a person’s estate. This law
was justifi ed on the “reasonable” grounds that it reduced the state courts’ work-
load by having an automatic rule that would limit challenges. However, the Court
ruled that the law was arbitrary, did not meet the “reasonableness” test, and there-
fore violated the woman’s equal protection rights under the Fourteenth Amend-
ment.^39 The second case involved a female Air Force offi cer who wanted to count
her husband as a dependent for purposes of health and housing benefi ts. Under the
current law a military man could automatically count his wife as a dependent, but
a woman could claim her husband only if she brought in more than half the family
income. The Court struck down this practice, saying that protectionist laws “in
practical eff ect, put women not on a pedestal, but in a cage.”^40
These two cases still relied on the rational basis test for discrimination
between men and women. It wasn’t until 1976 that the Court established the
intermediate scrutiny test 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 “rea-
sonable (or rational) basis” that 18- to 20-year-old women are more mature than
men of that age (and thus less likely to abuse alcohol). The new intermediate scru-
tiny 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.^41 (See Nuts and Bolts 13.2.)
Before this case, only two standards served to apply the Fourteenth Amendment
to diff erent categories of people: the reasonable basis test and the strict scrutiny test.
Racial minorities received the strongest protection as the “suspect classifi cation”
where the strict scrutiny test is applied. Under this test there must be a “compel-
ling state interest” to discriminate among people if race is involved. The only other
test before the new intermediate one said that it was acceptable to discriminate
against a group of people as long as there was a “reasonable basis” for that state law.
Today, for example, states can pass a 21-year-old drinking law on the grounds that
traffi c fatalities will be lower with that drinking age rather than with a law that
allows 18-year-olds to drink. The intermediate scrutiny test gives women stronger
protections than the rational basis test, but it is not as strong as strict scrutiny.
The more aggressive application of the Fourteenth Amendment for women
helped in providing them the equal protection of the laws, as shown in a Court
decision that struck down the Virginia Military Institute’s male-only admission
rational basis test The use of
evidence to suggest that differences
in the behavior of two groups can
rationalize unequal treatment of
these groups.intermediate scrutiny test The
middle level of scrutiny the courts
use when determining whether a
law is constitutional. To pass this
test, the law or policy must further
an important government interest in
a way that is “substantially related”
to that interest. This means that the
law uses means that are a close fi t
to the government’s objective and
not substantially broader than nec-
essary to accomplish that important
objective.strict scrutiny test The highest
level of scrutiny the courts use
when determining whether a law
is constitutional. To pass this test,
the law or policy must be shown to
serve a “compelling state interest”
or goal, it must be narrowly tailored
to achieve that goal, and it must
be the least restrictive means of
achieving the goal.