USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 69 of 150
Co., 446 U.S. 142, 151–52 (1980) (holding that the bare assertion of a difference in the economic standing of working men and women “falls far short of justifying gender-based discrimination on the grounds of administrative convenience”); and Stanley v. Illinois, 405 U.S. 645, 656–57 (1972) (although “[p]rocedure by presumption is always cheaper and easier than individualized determination[,]” the “Constitution recognizes higher values than speed and efficiency”).
This is not a controversial proposition. Scholars and commentators agree that administrative convenience cannot save a gender-based classification under intermediate scrutiny. See, e.g., Laurence H. Tribe, American Constitutional Law 1568 n.24 (2d ed. 1988) (explaining that, at the time of its decision in Wengler, the Supreme Court had “never upheld a gender classification on [the] basis” of administrative convenience); 1 William J. Rich, Modern Constitutional Law: Liberty and Equality § 13:5 (3d ed. 2021) (noting that the Supreme Court has “repeatedly concluded that administrative convenience served by use of [traditional gender] stereotypes will not meet a state’s need for an ‘important governmental interest’”); Gabrielle Fromer, With Equal Opportunity Comes Equal Responsibility: The Unconstitutionality of a Male-Only Draft, 18 Geo. J. of Gender & L. 173, 189 (2017) (“Administrative convenience is an insufficient basis to uphold a law under intermediate scrutiny.”).
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