by Amy Matsui, Senior Counsel,
National Women's Law Center
This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.
This is the moment judicial junkies spend years waiting for. As the Senate Judiciary Committee hearings begin on the nomination of Judge Sonia Sotomayor for the Supreme Court, we're eagerly anticipating hearing the questions almost as much as the answers. These hearings are an opportunity to hear high-level discussion about many of the legal issues that come before the Supreme Court that impact women’s lives, including the right to privacy, equal protection under the law, anti-discrimination protections, health and safety regulations, and more.
So let’s talk about Equal Protection. The Equal Protection Clause of the Fourteenth Amendment to the Constitution provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." Since 1973, the Supreme Court has held that a law or government policy that discriminates on the basis of sex cannot be upheld unless it can withstand heightened judicial scrutiny. That is, the government must offer an “exceedingly persuasive justification” for the law that is substantially related to the classification.
Before this standard was applied, no government-sponsored sex discrimination was found to be illegal, no matter how harmful and no matter how much it was based on outmoded stereotypes. But under the heightened scrutiny standard, the Court has struck down numerous laws that discriminate on the basis of sex, including a law that provided welfare benefits to children with unemployed fathers, but not those with unemployed mothers; a state statute that made a husband the “head and master” over property owned jointly with his wife; and state university policies that denied admission to women on the grounds that they were not “tough” enough to succeed at the school’s demanding curriculum.
But even though heightened scrutiny has been the law of the land for thirty-six years, Justices Scalia and Thomas take issue with it. Justice Scalia even dissented from the Court’s 1996 ruling that the exclusion of women from the state-run Virginia Military Institute, based on gender stereotypes about how women learn, was an Equal Protection violation. If their view prevails in future cases, it would make it easier to uphold sex-based classifications in the law even where they are based on harmful gender stereotypes. While Chief Justice Roberts and Justice Alito did not express opposition to heightened protection in their confirmation hearings, they have yet to rule on any constitutional cases involving the equal protection clause and sex discrimination.
In her seventeen years on the federal bench, Judge Sotomayor has never ruled directly on whether a law or government policy that differentiates between men and women violates the Equal Protection Clause. So Judge Sotomayor may be asked about her views on this constitutional principle.
Previous Supreme Court nominees have been asked about the Equal Protection standard. Stay tuned: Equal Protection may come up next week as well.
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