Mary Ellen Bork President Clintons Department of Justice is urging the Supreme Court to make a momentous change in the law governing allowable gender distinctions between the sexes. If the department succeeds the result would be to outlaw almost all distinctions between men and women in programs and institutions run or aided by government. Laws prohibiting homosexual marriages would also be stricken from the statute books.
Few people are aware of the cultural disaster the department seeks.
The Court has adopted three levels of scrutiny when distinctions made by government are challenged under the Equal Protection Clause of the Constitution. When the Court elects to use strict scrutiny, by far the most severe test, the government's distinction is certainly about to be held unconstitutional. As Judge Robert Bork has said, strict scrutiny is less a test than a conclusion. The legal burden of government to prove its interest in maintaining gender distinction is almost impossible. If this case is decided in favor of unisex living arrangements, there will be no legal justification for treating the sexes differently.