152
Kennedy, J., concurring in judgment
"What is this but declaring that the law in the States shall be the same for the black as for the white." Id., at 307. And while the Court held that the State could not confine jury service to whites, it further noted that the State could confine jury service "to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications." Id., at 310. See also Yick Wo v. Hopkins, 118 U. S. 356, 373-374 (1886).
As illustrated by the necessity for the Nineteenth Amendment in 1920, much time passed before the Equal Protection Clause was thought to reach beyond the purpose of prohibiting racial discrimination and to apply as well to discrimination based on sex. In over 20 cases beginning in 1971, however, we have subjected government classifications based on sex to heightened scrutiny. Neither the State nor any Member of the Court questions that principle here. And though the intermediate scrutiny test we have applied may not provide a very clear standard in all instances, see Craig v. Boren, 429 U. S. 190, 221 (1976) (Rehnquist, J., dissenting), our case law does reveal a strong presumption that gender classifications are invalid. See, e. g., Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982).
There is no doubt under our precedents, therefore, that the Equal Protection Clause prohibits sex discrimination in the selection of jurors. Duren v. Missouri, 439 U. S. 357 (1979); Taylor v. Louisiana, 419 U. S. 522 (1975). The only question is whether the Clause also prohibits peremptory challenges based on sex. The Court is correct to hold that it does. The Equal Protection Clause and our constitutional tradition are based on the theory that an individual possesses rights that are protected against lawless action by the government. The neutral phrasing of the Equal Protection Clause, extending its guarantee to "any person," reveals its concern with rights of individuals, not groups (though group disabilities are sometimes the mechanism by which the State violates the individual right in question). "At the heart of
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