Fact Pattern 4-3 Polly Owns a Restaurant Seating 150 People. She Just Learns

Fact Pattern 4-3
Polly owns a restaurant seating 150 people. She just learns of a newly enacted regulation in her city requiring that larger restaurants seating over 100 people be inspected by the health department on a monthly basis whereas smaller restaurants would only be inspected twice per year. She also learned that Frank, the local mayor, who recently went through a nasty divorce, was able to get passed a law requiring that restaurants owned by women pay a higher fee to receive a business license than those owned by men. Polly is angry about both laws and wants to take action to have them struck down.
-Refer to fact pattern 4-3. Which of the following is the city's best argument that the law imposing a higher fee on female restaurant owners should be upheld?

A) That under the rational basis test, females should pay higher taxes so long as it can be shown that they have a higher rate of business failure.
B) That under the intermediate level test, distinctions involving gender are examined in the same way as distinctions based on guarantees in the Bill of Rights, and that the Bill of Rights allows gender-based classifications.
C) That under the strict scrutiny test, gender is a legitimate method by which to delineate differences between categories of citizens.
D) The city does not have a good argument because there is no justification for the distinction under the substantially related test.
Answer: D