The VMI Tragedy

It is certain that the framers of the Fourteenth Amendment had no intention of erasing the distinctions that States often draw between men and women. Besides the fact that the Amendment’s purpose was to forbid state-sponsored racial discrimination against former slaves, the men who authored the Amendment harbored attitudes tempered by history and common sense but now condemned as “patriarchal” and “misogynistic.” Therefore, any modern effort to compel the States to treat men and women identically cannot honestly claim kinship with that Amendment. In our enlightened and gender-sensitive times, though, honesty is no barrier to expediency.

In the 1970s the Supreme Court began treating gender classifications as quasi-suspect and deserving of an “intermediate” scrutiny only slightly below the intense “strict scrutiny” aimed at racial classifications. Whereas racial classifications had to bear a “strong relationship” to a “compelling” State interest, gender classifications had to bear only a “substantial relationship” to an “important” State interest.* Although this intermediate scrutiny has left many gender distinctions standing, the Court deemed it powerful enough to topple the Virginia Military Institute (“VMI”) because, supposedly, the Old Dominion does not have a substantial interest in preserving its martial tradition.

Established in 1839, VMI dedicated itself to transforming young men into citizen-soldiers, a mission it performed with excellence and faithfulness. Yet in 1996 – one hundred fifty-seven years after VMI was established and one hundred twenty-eight years after the Fourteenth Amendment was passed – a faithless Supreme Court demanded that VMI justify itself.

This tragicomedy opened with a complaint by a female high-school student who had been denied admission. Aided and abetted by the U.S. Justice Department, her challenge ricocheted around the lower federal courts while Virginia hurriedly set up an all-female counterpart to VMI.** Unsatisfied with this solution, the Justice Department made the unflattering argument reminiscent of Brown v. Board of Education: an all-women’s school could never equal an all-men’s school. In other words, the only way women could experience the unique atmosphere of VMI was to attend VMI, which of course would render VMI no longer unique. Despite the fact that VMI drew attention to this inherent contradiction at oral argument, the Supreme Court hammered another nail into the Constitution’s coffin by ordering VMI either to admit female cadets or go private. To add insult to injury, the Court assigned the task of authoring the lead opinion to arch-feminist Ruth Bader Ginsburg. Not long after her sanctimonious words became public, South Carolina’s own military academy, The Citadel, conformed itself to the ruling and effectively ceased to exist.

Unsurprisingly, VMI soon became yet another outpost of civilian pathology.  The strict standards of personal grooming and physical fitness were watered down.  Pregnancies began appearing among the new student body, and when VMI sought to punish cadets participating in such fraternization, there was the inevitable backlash. Last but not least, a federal court ordered VMI to cease conducting prayers before meals lest it violate the new and improved First Amendment. This ruling was upheld on appeal, and the Supreme Court refused to review it. Surely the federal government and its henchmen are delighted by the ruthless efficiency with which they have obliterated another vestige of honor and tradition.

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* Meanwhile, the Court was making it clear that States had free rein over what the Court considered a much less important area of individual freedom, namely earning a living. Since the Court deemed this sort of freedom “economic” in nature, States had to show merely that a challenged economic rule or regulation was “rationally related” to a “legitimate state interest” – a non-burden that States almost always meet. Again, the importance of this unusual judicial deference lies not in the fact that States enjoy a great deal of leeway to regulate economic matters – which they undoubtedly do – but rather in the fact that the Court is playing favorites for no discernible reason other than its own political philosophy.

** The federal government’s participation in this siege on VMI’s tradition strikes a parallel to the Civil War, in which VMI personnel such as Stonewall Jackson fought with devastating effectiveness to resist armed invasion of their homes (until it became apparent that the North had more bodies than the South had bullets). The federal government could not resist the temptation to re-enact that invasion in the safer confines of a courtroom.