Chapter 9


As originally framed and ratified, the Constitution reflected the input and interests of white males. The Reconstruction Amendments factored racial reality into the constitutional framework. Gender remained beyond the pale of constitutional concern, however, until the twentieth century. Until then, constitutional challenges to laws restricting freedom of or opportunities for women were unsuccessful. Typifying the Supreme Court’s early thinking was its decision in Bradwell v. Illinois (1873), upholding a state law that barred women from practicing law. In support of this result, the Court observed that “[t]he paramount destiny of and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things.”

Original pronouncements on the meaning of the Equal Protection Clause made it clear, at least at the time, that it had nothing to do with gender. This understanding was evident in the Supreme Court’s first decision concerning the equal protection guarantee. In the Slaughter-House Cases (1873), the Court “doubt[ed] very much whether any action of a State not directed by way of discrimination against the Negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” This point was made even more directly with respect to gender during the same term the Court upheld a state law denying women the opportunity to practice law. This determination, in Bradwell v. Illinois (1873), was coupled with the observation that “[i]n the nature of things it is not every citizen of every age, sex and condition that is qualified for every calling and position.”

The Court’s rulings through the middle of the twentieth century reflected a sense that the legislature could account for traditional differences associated with men and women. Underlying this orientation was an understanding, referenced in Bradwell v. Illinois, that “the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.”

In 1920 the Nineteenth Amendment established that the right “to vote shall not be denied or abridged . . . on account of sex.” For another half century, however, the Court resisted interpreting the equal protection guarantee as a means of accounting for gender inequality. In the early 1970s, the Court gave indications that laws discriminating on the basis of gender might implicate the Equal Protection Clause. This possibility became a reality in Craig v. Boren (1976), when the Court announced that it would take a harder look at gender classifications. This decision, and case law that followed it, established the Equal Protection Clause as a barrier to traditional distinctions on the basis of gender. Representative of these decisions was United States v. Virginia (1996), which emphasized the importance of not basing public policy on the basis of dated stereotypes.

Craig v. Boren

Citation: 429 U.S. 190.

Issue: Whether a law prohibiting the sale and consumption of beer to males between the ages of 18 and 21, but not to females in the same age category, violated the Equal Protection Clause.

Year of Decision: 1976.

Outcome: The gender-based discrimination violated the equal protection guarantee.

Author of Opinion: Justice William Brennan.

Vote: 6-2.

Even as the social and legal standing of women changed over the decades, the Court was slow to change its thinking with respect to the Equal Protection Clause. In Goesart v. Cleary (1949), it thus upheld a state law barring women from working as bartenders unless related to the owner. As the Court put it, “[t]he fact that women may now have achieved the virtues that men have long practiced, does not preclude the States from drawing a sharp line between the sexes.”

Over the course of the twentieth century, significant changes took place with respect to the status of women. The Twenty-first Amendment prohibited gender-based abridgment of the right to vote. The Civil Rights Act of 1964 barred discrimination in employment not merely on the basis of race but also on the basis of gender. This progress represented the work of the political process, rather than any changed understanding of the Constitution. Evolution in this regard began to manifest itself, however, in the early 1970s.

An early indication of impending change was the Court’s decision in Reed v. Reed (1971). In this case, the Court invalidated an Idaho law that favored the use of men to administer estates in probate. Although it announced no new standard of review in Reed v. Reed, the Court drove a result that indicated a change in orientation. Two years later, in Frontiero v. Richardson (1973), the Court reviewed a federal benefits law presuming that a military serviceman’s spouse was dependent upon him. The regulation required a servicewoman, however, to prove the dependency of her spouse. Although no majority opinion was announced, Justice William Brennan and three other justices maintained that gender classifications were no different than racial classifications under the Equal Protection Clause. Accordingly, they concluded that such classifications are suspect and should be subject to searching judicial review. In a concurring opinion, Justice Lewis Powell agreed with the outcome but refused to adopt strict scrutiny as the appropriate model of review. He also noted that an equal rights amendment to the Constitution was pending possible ratification. Justice Powell thus favored withholding a determination with respect to a standard of review so as not to preempt the political process.

Although the equal rights amendment eventually failed the ratification process, the Court announced a standard of review that would subject gender classifications to heightened scrutiny. The key decision in this regard was Craig v. Boren (1976), when the Court indicated that it no longer would defer to legislative judgment on matters of gender. The issue in this case was an Oklahoma law that banned the sale of 3.2 percent beer to and by males under the age of 21. Sale to females between the ages of 18 and 21 was not similarly prohibited. In support of this gender-based classification, the state argued that males in the relevant age group presented a higher risk of driving while intoxicated and to highway safety. Actual data evidenced that men between the ages of 18 and 21 accounted for 2 percent of the state’s driving while intoxicated arrests. Females in the age group made up .18 percent of the state’s arrests.

If the law had been evaluated on the basis of traditional standards of review, it would have survived. Barring a classification such as race that merits searching judicial review, the Court typically asks only whether the state has a rational basis for its action and its regulatory means are reasonably related to the regulatory objective. The Court announced, however, that classifications on the basis of gender are subject to a higher level of scrutiny under the Equal Protection Clause. It thus implemented a standard of review requiring the state to demonstrate that a gender classification serves an important governmental objective and is substantially related to achieving this goal.

Judged by this standard, the Oklahoma law was found wanting. The Court accepted that the state’s interest in safe highways was important. It determined that this interest was not substantially advanced, however, by gender-specific regulation. The major deficiency of the male-only prohibition was its failure to account for the state’s regulatory interest. In this regard, the Court noted that the relationship between the gender-based restriction and traffic safety was minimal. Undermining the enactment’s efficacy too was the fact that the measure did not prohibit consumption of beer purchased by a third party. The state also failed to demonstrate that the sale of 3.2 percent beer presented a greater risk to highway safety than other forms of liquor. Statistical evidence was seen as weak in documenting risk differentials on the basis of age and gender. Despite acknowledging the legitimacy and importance of the state’s interest, the Court determined that the state’s use of a gender classification conflicted with the Equal Protection Clause.

Justice William Rehnquist opposed the equal protection guarantee’s extension to gender. In a dissenting opinion, he argued for an interpretation consistent with original understanding that confines the Equal Protection Clause to matters of racial discrimination. Justice Rehnquist also was mystified why the Court had decided to use a heightened standard of review when men were the target of gender-based regulation. As he saw it, the status of men was unlike that associated with the condition of historically disadvantaged groups. For Justice Rehnquist, they were the last group needing protection from the political process.

The Court’s ruling represented a significant expansion of the equal protection guarantee’s boundaries. Despite a century of resistance to this extension, the result is consistent with the history of any principle that operates to equalize some condition or status. Various constitutional authorities have noted that, when an equality principle is introduced on behalf of one group, it invariably is pushed to account for the interests of other groups. Charles Fairman, who wrote extensively on the Fourteenth Amendment, observed that “equal protection as it spreads out tends to lift all to the level of the most favored.” Consistent with this phenomenon, the determination that racial classifications warranted heightened judicial review represented a starting point rather than an ending point for the evolution of equal protection doctrine. Its application to gender reflects an acquired sense of commonality in racial and gender experiences based upon exclusion from the political process, historical disadvantage based upon group status, and immutable characteristics.

Because women have full access to the political process, some critics maintain that gender should not be an object of special judicial attention. The Court largely has rejected this argument. Although its standards for reviewing gender classifications are not as intense as those used for assessing racial classifications, the Court nonetheless continues to be alert to classifications that reflect outdated stereotypes with respect to the role of women.


Mr. Justice BRENNAN delivered the opinion of the Court.

. . . Analysis may appropriately begin with the reminder that Reed [an earlier Supreme Court case] emphasized that statutory classifications that distinguish between males and females are “subject to scrutiny under the Equal Protection Clause.” To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Thus, in Reed, the objectives of “reducing the workload on probate courts,” and “avoiding intrafamily controversy,” were deemed of insufficient importance to sustain use of an overt gender criterion in the appointment of administrators of intestate decedents’’ estates. . . .

Reed has also provided the underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification. Hence, “archaic and overbroad” generalizations, concerning the financial position of servicewomen, and working women, could not justify use of a gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly outdated misconceptions concerning the role of females in the home rather than in the “marketplace and world of ideas” were rejected as loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy. In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances where the sex-centered generalization actually comported with fact.

. . . We turn then to the question whether, under Reed, the difference between males and females with respect to the purchase of 3.2% beer warrants the differential in age drawn by the Oklahoma statute. We conclude that it does not. . . .

We accept for purposes of discussion the District Court’s identification of the objective underlying [Oklahoma’s law] as the enhancement of traffic safety. Clearly, the protection of public health and safety represents an important function of state and local governments. However, appellees’ statistics in our view cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot under Reed withstand equal protection challenge.

The appellees introduced a variety of statistical surveys. First, an analysis of arrest statistics for 1973 demonstrated that 18-20-year-old male arrests for “driving under the influence” and “drunkenness” substantially exceeded female arrests for that same age period. Similarly, youths aged 17-21 were found to be overrepresented among those killed or injured in traffic accidents, with males again numerically exceeding females in this regard. Third, a random roadside survey in Oklahoma City revealed that young males were more inclined to drive and drink beer than were their female counterparts. Fourth, Federal Bureau of Investigation nationwide statistics exhibited a notable increase in arrests for “driving under the influence.” Finally, statistical evidence gathered in other jurisdictions, particularly Minnesota and Michigan, was offered to corroborate Oklahoma’s experience by indicating the pervasiveness of youthful participation in motor vehicle accidents following the imbibing of alcohol. Conceding that “the case is not free from doubt,” the District Court nonetheless concluded that this statistical showing substantiated “a rational basis for the legislative judgment underlying the challenged classification.”

Even were this statistical evidence accepted as accurate, it nevertheless offers only a weak answer to the equal protection question presented here. The most focused and relevant of the statistical surveys, arrests of 18-20-year-olds for alcohol-related driving offenses, exemplifies the ultimate unpersuasiveness of this evidentiary record. Viewed in terms of the correlation between sex and the actual activity that Oklahoma seeks to regulate driving while under the influence of alcohol the statistics broadly establish that .18% of females and 2% of males in that age group were arrested for that offense. While such a disparity is not trivial in a statistical sense, it hardly can form the basis for employment of a gender line as a classifying device. Certainly if maleness is to serve as a proxy for drinking and driving, a correlation of 2% must be considered an unduly tenuous “fit.” Indeed, prior cases have consistently rejected the use of sex as a decisionmaking factor even though the statutes in question certainly rested on far more predictive empirical relationships than this. . . .

There is no reason to belabor this line of analysis. It is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique. But this merely illustrates that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause. Suffice to say that the showing offered by the appellees does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving. In fact, when it is further recognized that Oklahoma’s statute prohibits only the selling of 3.2% beer to young males and not their drinking the beverage once acquired (even after purchase by their 18-20-year-old female companions), the relationship between gender and traffic safety becomes far too tenuous to satisfy Reed’s requirement that the gender-based difference be substantially related to achievement of the statutory objective.

We hold, therefore, that under Reed, Oklahoma’s 3.2% beer statute invidiously discriminates against males 18-20 years of age.

Mr. Justice REHNQUIST, dissenting.

The Court’s disposition of this case is objectionable on two grounds. First is its conclusion that men challenging a gender-based statute which treats them less favorably than women may invoke a more stringent standard of judicial review than pertains to most other types of classifications. Second is the Court’s enunciation of this standard, without citation to any source, as being that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” The only redeeming feature of the Court’s opinion, to my mind, is that it apparently signals a retreat by those who joined the plurality opinion in Frontiero v. Richardson, from their view that sex is a “suspect” classification for purposes of equal protection analysis. I think the Oklahoma statute challenged here need pass only the “rational basis” equal protection analysis expounded in cases such as [cites], and I believe that it is constitutional under that analysis.

In Frontiero v. Richardson, supra, the opinion for the plurality sets forth the reasons of four Justices for concluding that sex should be regarded as a suspect classification for purposes of equal protection analysis. These reasons center on our Nation’s “long and unfortunate history of sex discrimination,” which has been reflected in a whole range of restrictions on the legal rights of women, not the least of which have concerned the ownership of property and participation in the electoral process. Noting that the pervasive and persistent nature of the discrimination experienced by women is in part the result of their ready identifiability, the plurality rested its invocation of strict scrutiny largely upon the fact that “statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.”

Subsequent to Frontiero, the Court has declined to hold that sex is a suspect class, and no such holding is imported by the Court’s resolution of this case. However, the Court’s application here of an elevated or “intermediate” level scrutiny, like that invoked in cases dealing with discrimination against females, raises the question of why the statute here should be treated any differently from countless legislative classifications unrelated to sex which have been upheld under a minimum rationality standard.

Most obviously unavailable to support any kind of special scrutiny in this case, is a history or pattern of past discrimination, such as was relied on by the plurality in Frontiero to support its invocation of strict scrutiny. There is no suggestion in the Court’s opinion that males in this age group are in any way peculiarly disadvantaged, subject to systematic discriminatory treatment, or otherwise in need of special solicitude from the courts.

The Court does not discuss the nature of the right involved, and there is no reason to believe that it sees the purchase of 3.2% beer as implicating any important interest, let alone one that is “fundamental” in the constitutional sense of invoking strict scrutiny. Indeed, the Court’s accurate observation that the statute affects the selling but not the drinking of 3.2% beer, further emphasizes the limited effect that it has on even those persons in the age group involved. There is, in sum, nothing about the statutory classification involved here to suggest that it affects an interest, or works against a group, which can claim under the Equal Protection Clause that it is entitled to special judicial protection.

It is true that a number of our opinions contain broadly phrased dicta implying that the same test should be applied to all classifications based on sex, whether affecting females or males. However, before today, no decision of this Court has applied an elevated level of scrutiny to invalidate a statutory discrimination harmful to males, except where the statute impaired an important personal interest protected by the Constitution. There being no such interest here, and there being no plausible argument that this is a discrimination against females, the Court’s reliance on our previous sex-discrimination cases is ill-founded. It treats gender classification as a talisman which without regard to the rights involved or the persons affected calls into effect a heavier burden of judicial review.

The Court’s conclusion that a law which treats males less favorably than females “must serve important governmental objectives and must be substantially related to achievement of those objectives” apparently comes out of thin air. The Equal Protection Clause contains no such language, and none of our previous cases adopt that standard. I would think we have had enough difficulty with the two standards of review which our cases have recognized the norm of “rational basis,” and the “compelling state interest” required where a “suspect classification” is involved so as to counsel weightily against the insertion of still another “standard” between those two. How is this Court to divine what objectives are important? How is it to determine whether a particular law is “substantially” related to the achievement of such objective, rather than related in some other way to its achievement? Both of the phrases used are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation, masquerading as judgments whether such legislation is directed at “important” objectives or, whether the relationship to those objectives is “substantial” enough.

I would have thought that if this Court were to leave anything to decision by the popularly elected branches of the Government, where no constitutional claim other than that of equal protection is invoked, it would be the decision as to what governmental objectives to be achieved by law are “important,” and which are not. As for the second part of the Court’s new test, the Judicial Branch is probably in no worse position than the Legislative or Executive Branches to determine if there is any rational relationship between a classification and the purpose which it might be thought to serve. But the introduction of the adverb “substantially” requires courts to make subjective judgments as to operational effects, for which neither their expertise nor their access to data fits them. And even if we manage to avoid both confusion and the mirroring of our own preferences in the development of this new doctrine, the thousands of judges in other courts who must interpret the Equal Protection Clause may not be so fortunate.


Colker, Ruth. “Anti-Subordination Above All: Sex, Race and Equal Protection.” New York University Law Review 61 (1986): 1003.

Law, Sylvia. “Rethinking Sex and the Constitution.” University of Pennsylvania Law Review 132 (1984): 955.

MacKinnon, Catharine A. Toward a Feminist Theory of the State. Cambridge, MA: Harvard University Press, 1991.

United States v. Virginia

Citation: 518 U.S. 515.

Issue: Whether a state military college’s male-only admission policy violated the Equal Protection Clause.

Year of Decision: 1996.

Outcome: The gender exclusive policy violated the equal protection guarantee.

Author of Opinion: Justice Ruth Bader Ginsburg.

Vote: 7-1.

Only gold members can continue reading. Log In or Register to continue