For more than a quarter century, the Supreme Court has repeatedly declared that sex-based state action is subject to heightened scrutiny under the Equal Protection Clause. But the Court has always been much less clear about what that standard allows and what it prohibits. For this reason, it is especially noteworthy that one of the Court's most recent sex discrimination opinions, United States v. Virginia, purports to provide more coherent guidance. Virginia suggests that the constitutionality of sex-based state action turns on whether the practice at issue denies women "full citizenship stature" or "create[s) or perpetuate[s) the legal, social, and economic inferiority of women." Yet the opinion does not begin to indicate how the sex discrimination jurisprudence might implement this new standard. In particular, it does not tell us how to determine whether any specific practice deprives women of "full citizenship" or maintains their "inferiority." The answer to this question is far from obvious. Indeed, even the large legal literature that has long argued that constitutional law enforcing the Equal Protection Clause should be structured around a commitment to combating "subordination" provides us with relatively little guidance. This literature would seem to have concerns importantly aligned to those that Virginia articulates. But it ultimately does not teach us much about how to identify the practices that undermine women's "full citizenship" or sustain their "inferiority." This Article attempts to give some content to the framework that Virginia presents. More specifically, it explores how analyzing the historical record of a practice can inform an investigation into whether, when, and why that practice is consistent with women's "full citizenship stature" or operates to perpetuate their "legal, social, and economic inferiority."
Jill E. Hasday,
The Principle and Practice of Women's "Full Citizenship": A Case Study of Sex-Segregated Public Education,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol101/iss3/3