Today in 1976: Intermediate scrutiny is created

December 20, 2013

Today in Legal History“Intermediate scrutiny” is a legal standard to determine the constitutionality of a statute that applies to a “quasi-suspect” classification, of which “sex” is the most commonly seen by courts.

This legal standard turned 37 years old today: the Supreme Court case in which this standard was first applied, Craig v. Boren, was decided on December 20, 1976.

The creation of intermediate scrutiny is widely seen as a major victory for women’s rights.  Interestingly, though, the case was brought by a male challenging a law that seemingly favored females.

The male, Curtis Craig, filed a challenge against an Oklahoma law that prohibited the sale of “nonintoxicating” 3.2% beer to males under the age of 21, but to females under the age of 18.  Craig argued that this “constituted a gender-based discrimination that denied to males 18-20 years of age the equal protection of the laws.”

The district court disagreed with Craig, finding that the state of Oklahoma’s statistical evidence regarding young males’ drunk-driving arrests and traffic injuries demonstrated that the gender-based discrimination was substantially related to the achievement of traffic safety on Oklahoma roads.

The standard applied by the district court was the only elucidated by the Supreme Court over five years earlier in Reed v. Reed, the first case to hold that the Fourteenth Amendment’s Equal Protection Clause prohibited discrimination based on sex.  The standard applied from Reed, however, most closely resembled rational basis – the least strict standard of judicial review.

A five justice majority in Craig departed from its earlier Reed decision, creating a new standard more exacting than rational basis, yet not as stringent as “strict scrutiny.”  This standard is, of course, intermediate scrutiny, and it requires that, for a sexually discriminatory law to survive a constitutional challenge, it must serve an important governmental interest and be substantially related to serving that interest.

As I’ve noted previously, it can be somewhat difficult to pin down the exact difference between intermediate’s “important” interest and strict scrutiny’s “compelling” interest, and between intermediate’s “substantially” and rational basis’s “rationally” related.  A great deal of discretion is left to the courts.

In practice, however, the application of intermediate scrutiny leads to the challenged law’s invalidation more often than not.

Ruth Bader GinsburgCraig’s creation of intermediate scrutiny has another interesting aspect to it that is likely unknown to most: it is one of the crowning achievements of Ruth Bader Ginsburg’s career as a litigator.

As discussed in more detail in our post profiling the Supreme Court justice, Ginsburg had made a concerted effort through litigation to change the law so that sexually discriminatory laws were subject to a higher level of scrutiny than merely “rational basis.”

Ginsburg represented the law’s challenger in Reed, also writing her brief, which advocated for a heightened scrutiny in court review of sexually discriminating laws.

After Reed, Ginsburg worked on four other Supreme Court cases toward this goal of heightened scrutiny before finally achieving success in Craig.

Although Ginsburg didn’t actually represent Craig, she wrote an amicus brief in support of him, and further counseled Craig’s attorney on his arguments, correctly advising him against asking for strict scrutiny, telling him, “we don’t have five votes for [strict scrutiny], so play that down.”

Ginsburg’s advice was apparently sound, since Craig was able to garner five votes in support of heightened scrutiny – thereby establishing a new standard of judicial review.

More recently, intermediate scrutiny had been applied in some appeals court decisions against the Defense of Marriage Act’s Section 3, which required the federal government to limit the definition of marriage to heterosexual spouses.

The Supreme Court declined to explicitly adopt such a standard in its landmark U.S. v. Windsor decision this past June – likely because the adoption of such a standard would have had profound effects on similar state-level prohibitions on the recognition of same-sex marriages (which is not something that swing voter Justice Kennedy likely would have condoned).

Nevertheless, in light of the direction that legal treatment of same-sex marriage has taken in recent years, it seems to be only a matter of time until intermediate scrutiny is applied to laws that discriminate on the basis of sexual orientation – which would broadly expand protections enjoyed by LGBT individuals under the law.

And this protection would be made possible by Craig v. Boren’s creation of that standard 37 years ago.