Court Holds That Domestic Violence Programs Can't Exclude Men

In an important decision, the Court of Appeal for the Third Appellate District has held in Woods v. Shewry (available here) that the State cannot constitutionally exclude men from domestic violence programs. The court held that the Equal Protection Clause of the California Constitution subjects gender-based classifications to strict scrutiny under Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1 (1971), and that the State could not prove that excluding men from certain domestic violence programs was necessary to further a compelling state interest. However, the court expressly refrained from holding that men and women had to be provided equal services. Instead, acknowledging that women were more often victims of domestic violence than men, and suffered greater injuriies than men when they were, the court said that "it may be appropriate to provide more and different services to battered women and their children. For example, a program might offer shelter for women, but only hotel vouchers for a smaller number of men."

Many things are interesting about this case, both doctrinally and factually. As a factual matter, the record seems very thin. While there was evidence in the record about the state programs that plaintiffs were attacking, which were programs that provided grants to individual service providers, the court made no reference to evidence that might have been adduced from individual providers or recipients of services. For example, the record apparently showed that all the grantees of one state program offered gender-neutral services, as did 85% of the grantees of the other program. From this the court deduced that the state had no compelling interest in funding grantees who were not gender neutral. But it would have been interesting to know whether the 15% of grantees that provided services only to women were providing different services than the other grantees, services that might have benefitted from a female-only clientele.

Moreover, while the court "reformed" the domestic violence definitions to make them gender-neutral, it did not specifically require that all grantees serve both men and women. To take the example given by the court, a shelter could be reserved for women as long as men got something, too, such as a hotel voucher. Does this mean that an organization that only operated a shelter for battered women could not get state funding? Or is the Equal Protection Clause satisfied as long as another grantee in the same area provided hotel vouchers?

Doctrinally, too, the case raises more questions than it answers. For one thing, the opinion's equal protection analysis starts out by saying that no equal protection scrutiny is required unless the two groups disparately affected by a challenged statute "are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” But then the court says, quite inconsistently, that because equal protection rights are individual, the fact that women experience violence more than men, and suffer greater injuries when violence occurs, is irrelevant to equal protection analysis. So strict scrutiny is required even though men and women are not similarly situated as victims of violence.

More broadly, the case assumes without much analysis that strict scrutiny applies to a grant program that provides government benefits rather than a statute that disadvantages a disfavored class. It's very much like saying that affirmative action should be treated the same as invidious racial discrimination. There are certainly federal cases in the area of race that approach this position, but does it accurately state California law? Stay tuned.

This case seems like a great candidate for Supreme Court review. I would be suprised if the decision doesn't stir up a big storm and if the California Supreme Court doesn't take it.