Some social-media discussions of Obergefell yesterday provoked me to look more closely at what, exactly, the Supreme Court has said about the application of intermediate scrutiny to symmetric gender distinctions. Are they encompassed within "classifications" in Craig and its progeny (on the most sensible reading of those precedents)? Craig was decided in December 1976, but a few months before, the Third Circuit upheld gender-segregated schools in Vorchheimer v. Philadelphia.
The Supreme Court granted cert, but with Justice Rehnquist, who would have upheld even the gender discrimination in Frontiero, recused. The Court ended up affirming by an equally divided court. Distinguishing Craig, Philadelphia took the position (see 1977 WL 189424, *26-*27) like that floated by John Bursch in Obergefell, and which I have defended: that "classifications" in the context of gender distinctions, unlike the racial context, should not include symmetric segregation requirements (or, presumably, symmetric integration requirements), and so only rational-basis scrutiny was proper. The Court reviewed this history in note 1 of MUW in 1982 and in note 7 of US v. Virginia in 1996, making clear that it was not resolving the question left open by the 4-4 vote in Vorchheimer.
Assistant SG Paul Bender, arguing in US v. Virginia for ratcheting up the Craig standard to strict scrutiny, specifically mentioned Vorchheimer at oral argument. Justice Kennedy said that he doubted that single-sex education, even if genuinely equal, could survive strict scrutiny, and Bender replied by restating the issue as "the extent of the strict scrutiny doctrine":
In the race area, the Court has made the decision that racial classification, racial separation is inherently unequal. The Court has never faced that question except in the Vorchheimer case, which was affirmed by four to four as to whether the same thing is true in the gender area.
Justice Ginsburg asked,
[M]ay I ask you specifically with respect to this case, do you have any quarrel with Judge Phillips, who said in dissent that if we were starting from scratch we could have in this area what we couldn't have in the race area, that is, genuine freedom of choice plan, where you would have a VMI for both sexes, and you would have a military academy for men and a military academy for women, and we're starting them all on the same day, and they all have equal funding and equal engineering and math programs. Would that be constitutional?
Bender replied, "We have no problem with that. If they're equal." In the opinion, Justice Ginsburg's footnote 7 said, in response to amici touting the benefits of single-sex education, "We do not question the Commonwealth's prerogative evenhandedly to support diverse educational opportunities." She then cited note 1 of MUW, which noted Vorchheimer, just at the CA4 dissent had done.
Bursch's position is essentially that the Court's "do not question" is best construed as "do not subject to heightened scrutiny" and Bender's "We have no problem" is best construed as "We have no argument for heightened review." Certainly Bender did not explain what Justice Kennedy was worried about: whether single-sex education could survive strict strutiny. Nor did Ginsburg explain why it could survive "exceedingly persuasive justification" scrutiny.
One reason to construe the Virginia Court this way is that in rejecting the VWIL alternative to VMI, it relied centrally, not on Brown v. Board of Education from 1954, but on Sweatt v. Painter from 1950. Brown and its progeny, of course, made clear that Korematsu's disfavor for "legal restrictions which curtail the civil rights of a single racial group" applies to segregation too. Sweatt and its companion case McLaurin, however, applied only the "but equal" part of the the separate-but-equal rule of Plessy and its progeny. (The Vorchheimer plaintiffs as well relied on Sweatt, not Brown.)
Part VI of Virginia argued at length that VWIL was akin to the inadequate alternative law school in Sweatt. If, however, the Court in Virginia had accepted a simple (gender segregation):(gender disfavor)::(racial segregation):(racial disfavor) analogy, it would not have had to compare VWIL with VMI at all. If gender separation connoted inferiority as in the racial case, the case would have been quite easy indeed.
Having thought about Vorchheimer for all of one day, these issues are, of course, nowhere near free from doubt to me. Only one amicus brief even mentioned Vorchheimer. In difficult cases at the Supreme Court–especially those argued in April–I find myself at the end of June almost always rooting for reargument. It is hard to imagine the Court digesting this material adequately in two months.
Update: The MUW oral argument also fleshes out a bit what was at stake in its footnote 1. Looking back at Vorchheimer, the Court clearly had in mind a lack of scrutiny for gender segregation, not its satisfaction:
Court: If Mississippi now started an all-male school, and had a female school too, the decision below wouldn't necessarily outlaw that system.
Mr. Colom: It possibly could, Your Honor, because you would still have to have the Craig v. Boren standard applied, because you would still have a gender classification.
Court: But you could say that there was no discrimination. And you don't have to have a justification until you've got a discrimination, do you?
Mr. Colom: I understand you have to have a justification when you have a gender classification, and that would have to be justified.
Court: Well, you have to have an unequal gender classification.
Mr. Colom: There are some suggestions of that in the lower court decisions.
Court: Well, you must have thought so or you wouldn't have made the argument based on Vorchheimer.
Mr. Colom: Yes, sir. We made several arguments in the alternative. [General laughter.]
Also in this vein is footnote 8 of the National Women's Law Center amicus brief in MUW, 1982 WL 608477, *16: "The question whether disparate treatment based on sex might still exist if Mississippi were to create an 'all-male institution comparable to MUW,' 646 F.2d at 1119, is not presented by this case and should not be decided in the abstract by the Court." It's the possible non-existence of "disparate treatment based on sex," not the possible existence of an exceedingly persuasive justification for such disparate treament, that the brief wanted the Court to leave open, and which I think the Court did leave open.
Posted at 2:36 PM