Candace Saari Kovacic-Fleischer*
The United States challenged Virginia Military Institute's ("VMI") male-only admissions policy in United States v. Virginia,l the latest gender equal protection case to reach the Supreme Court. The opinion, written by Justice Ruth Bader Ginsburg, is remarkable in several ways. It balances two debated viewpoints for achieving gender equality: whether governmental policies should provide equal treatment or equal results for men and women. It achieves this balance by requiring VMI to admit only capable women and, where necessary, to make adjustments and alterations to facilitate their admission. United States v. Virginia's balance between the different approaches for achieving equality appears to raise gender equal protection analysis to the level of strict scrutiny and to alter constitutional disparate impact analysis. In addition, the Court's citation to a Title VII2 pregnancy leave case can be read both to apply Title VII's pregnancy analysis to the Constitution and to require the application of United States v. Virginia's institutional redesign for equality analysis to Title VII pregnancy and parenting cases. These developments could have significant ramifications for governmental and workplace policies.
Part II of this Article briefly describes both the VMI litigation and some of the viewpoints of policymakers and scholars with respect to gender equality and policies affecting reproduction and parenting. to gender equality and policies affecting reproduction and parenting. Part II then analyzes how United States v. Virginia balances viewpoints for achieving equality by requiring VMI to admit women who can succeed in its demanding environment, while at the same time requiring it to make changes to accommodate "celebrated" differences between men and women with respect to physical strength and privacy. This Part explains that requiring institutional accommodations for "celebrated" differences neither denigrates women nor makes them appear to be the "inferior" sex. These mandated institutional changes do not "lower standards" for women; rather, in order to maximize the talents of both genders they redesign standards that were initially, and unnecessarily, established only for men.
Part III analyzes how the requirement of institutional redesign changes gender equal protection analysis. This Part describes current midtier gender equal protection analysis and United States v. Virginia's departure from that analysis. The new analysis resembles both Title VII and strict scrutiny constitutional cases, and calls into question the continuing validity of some prior gender equal protection cases. This Part further describes how United States v. Virginia's reliance upon remedial racial equal protection cases is consistent with heightened gender equal protection scrutiny.
Part IV asserts that United States v. Virginia effectively overrules Geduldig v. Aiello,3 the Supreme Court case holding that pregnancy discrimination is not necessarily sex discrimination per se under the Fourteenth Amendment.4 The conclusion that pregnancy discrimination is now viewed as sex discrimination under the Constitution follows from the Court's reasoning that the Fourteenth Amendment is violated when "some women" are discriminated against and from the Court's citation to California Federal Savings & Loan Association v. Guerra,5 a Title VII pregnancy leave case. Part IV further asserts that United States v. Virginia's institutional alteration analysis can be applied to Title VII. This result also follows from the Court's citation to Guerra, and because pregnancy can be compared to the physical gender characteristic of strength addressed by the VMI case. This would require employers to provide expectant mothers with paid leave so that they can retain their jobs and pay, just as expectant fathers do when their children are born.
Part IV asserts, by analogizing parenting to privacy, both of which are based on a combination of physical differences between the sexes and social norms, that the institutional alteration analysis of United States v. …