Sex and sexual orientation Reed V. Reed

• 1971. SCt struck down a statute preferring men over women as administrators of estates. SCt purported to apply the traditional “mere rationality” standard. But in rejecting the state’s contention that the preference reduced the workload of probate courts by eliminating hearings on the merits, SCt was clearly putting more bite into the traditional standard than it had done previously.

Frontiero V. Richardson – Classification based on sex inherently suspect

• 1973. SCt explicitly rejected the “mere rationality” standard for gender-based classifications. In fact, that case went virtually to the other extreme, with a plurality holding that classifications based on sex, “like classifications based upon race, alienage, or national origin,” are “inherently suspect and must therefore be subjected to strict judicial scrutiny.”

Craig V. Boren – Beer sales to 18 – 20 year-old women only, not men

• 1976. SCt settled on an “intermediate” level of scrutiny for gender-based classifications, whether “benign” or not.

• Facts. This case was a successful challenge to an Oklahoma statute which forbade the sale of “3.2% beer” (supposedly non-intoxicating) to males under the age of 21, and to females under the age of 18. The constitutional claim was that the statute denied equal protection to males aged 18 to 20.

• Holding

• Standard articulated. SCt articulated the applicable standard as being that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.

1. New standard not explicit. Majority did not explicitly announce that it was applying a new standard different from either the traditional “mere rationality” test or the “strict scrutiny” reserved for suspect classifications and fundamental rights. In fact, SCt purported merely to be applying standards established in previous cases, including Reed and Frontiero. But the concurring and dissenting opinions clearly viewed the majority as having formulated a third, middle, level of scrutiny.

• Defense of statute. Oklahoma defended statute on grounds that it promoted traffic safety, since, statistically, 18-20 year old males were arrested for drunken driving much more frequently than females in the same age group (2% of males and .18% of females in that age group were arrested for drunk driving.)

• Insufficient correlation. Majority found this statistically-based defense insufficient.

1. Maleness not “proxy.” First, since such a small portion even of males in the relevant age group were convicted of drunken driving, maleness could not serve as a “proxy” for drinking and driving.

2. Non-intoxicating beverage. Secondly, even if 18-20 year old males did drive while drunk with a sufficiently greater frequency than similarly-aged females, this did not establish that the state’s regulation of 3.2% beer was reasonable, since that beverage was supposedly non-intoxicating.

3. Only sale prohibited. Lastly, the statute only prohibited the selling of the beer to males, not their drinking it once they acquired it (perhaps via a purchase by an 18-20 year old female companion).

4. Poor overall fit. Thus, overall, the “fit” between the means of regulation selected (ban on sale of 3.2% beer to 18-20 year olds) and the end sought to be achieved (promotion of traffic safety) was simply too tenuous to constitute the required “substantial relation” between means and end.

• Dissent - Rehnquist. Argued that the case should be judged according to a “mere rationality” standard. He apparently would not have objected to intermediate-level scrutiny for discrimination against women, but saw not reason why discrimination against males should be given any greater scrutiny than that given to the great majority of other statutes attacked on equal protection grounds.

• Means-end “fit.” Rehnquist also objected to majority’s conclusion that the statute was invalid because the fit between being an 18-20 year old male and driving while drunk was unduly tenuous. In his opinion, what counted was not the relative size of the percentage of young males who drank, but whether this percentage was higher than for females. Since there was evidence that, however few young males were arrested for drunken driving, it was far more proportionately than the number of females, he found the connection between regulation of 3.2% beer and promotion of traffic safety “rational,” meriting upholding of the statute.