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Hastings Constitutional Law Quarterly

Authors

Pamela A. Lewis

Abstract

Ms. Lewis argues that opponents of the California Civil Rights Initiative ("CCRI") have attempted to scare women as part of a campaign strategy to defeat the proposed constitutional amendment. In particular, she criticizes the opposition's arguments that, if CCRI passes, subdivision (c) will lower the standard of judicial review of all sex classifications under the California Constitution. The author argues that subdivision (c) will have no such effect as the subdivision's language is borrowed from the bona fide occupational qualification ("BFOQ") provision of the Civil Rights Act of 1964. BFOQs are recognized as narrow exceptions to federal and state antidiscrimination laws, including California's Fair Employment and Housing Act. Under the BFOQ exception, courts sustain sex-based classifications only if stringent requirements are met. Additionally, Ms. Lewis argues, the California Constitution has been interpreted as requiring strict scrutiny of sex classifications. Finally, subdivision (c)- which begins with the words "[n]othing in this section"-is by its own terms restricted to the provisions of the CCRI. If the CCRI passes, the new section will not modify any other provision of the existing Constitution.

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