Although the Fourteenth Amendment was motivated chiefly by concerns about disparate treatment based on race, the equal protection clause does not specifically mention racial discrimination, and, in recent years, the Supreme Court has used the clause to extend heightened scrutiny to classifications based on gender. Recognizing that, like race, gender is a noticeable characteristic with which a person is born and that has been used for many years to discriminate against individuals, at least four justices of the U.S. Supreme Court have argued that classifications based on gender should also be regarded as suspect. As discussed in the chapter on the judiciary, a Court majority has yet to go this far, but it has extended “heightened scrutiny” to gender classifications.
This approach reversed decades during which the Court refused to apply the equal protection clause to gender classifications. In Bradwell v. Illinois (1873), for example, the Court upheld a law banning women from the practice of law as reasonable and consistent with natural law. While the majority decision was based, like The Slaughterhouse Cases, on a restrictive reading of the privileges and immunities clause, a concurring opinion written by Justice Joseph Bradley and joined by two other justices said that, “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”
In more recent years, however, a Court majority, while refusing to regard gender as a suspect category, has nonetheless formulated an intermediate test by which to see that gender classifications are based on and substantially related to important governmental interests, rather than simply being based on sexual stereotypes. Thus, in Reed v. Reed (1971) the Court struck down a law that automatically regarded a male, rather than a female, as better qualified to be an executor of an estate..............
