Women's Rights as a Concern for the "Lives Lived as Citizens Under a Rights Regime"

Abstract

One of the most opaque and inconsistent areas of constitutional law is the Supreme Court’s intermediate scrutiny test as applied to gender discrimination. Sometimes, the Court applies this test in a way that is stricter than strict scrutiny, applying an especially skeptical eye regarding whether the government’s stated purpose for the law is genuine. Other times, the Court applies intermediate scrutiny in a far softer manner in which it gullibly accepts the government’s stated purpose even it has strong reasons to be skeptical. The Court’s standard for how well a gender-discriminatory law must fit its stated purpose also varies significantly from case to case. This essay examines how Ronald Kahn’s emphasis on how “lives lived as citizens under a rights regimes” adds clarity and predictability to this seemingly confusing constitutional standard.