Note: This is an educational course, not legal advice.
For most of American history, laws treating men and women differently were upheld under rational basis. Between 1971 and 1996 the Court built a middle tier for sex classifications. This topic applies the framework and the tiers from Con Law I: heightened scrutiny.
| Case | Law | What the Court did |
|---|---|---|
| Reed v. Reed (1971) | Idaho preferred men over women as administrators of estates | struck it down, unanimously, as arbitrary: the first time the Court invalidated a law for sex discrimination under the Equal Protection Clause |
| Frontiero v. Richardson (1973) | the military gave male members' wives benefits automatically, but female members' husbands had to prove dependency | struck it down (8 to 1); a plurality of four would have applied strict scrutiny, one vote short |
| Craig v. Boren (1976) | Oklahoma let women buy 3.2 percent beer at 18 but men only at 21 | struck it down; set intermediate scrutiny: an important objective and a substantial relationship |
| United States v. Virginia (1996) | the Virginia Military Institute admitted only men; Virginia offered a separate program for women | struck it down (7 to 1); the state must show an "exceedingly persuasive justification" |
Why it works
Why a middle tier? Sex classifications share some features of race: a history of legal disadvantage and a trait unrelated to most abilities. But the Court has recognized that some real differences exist (for example in pregnancy), so not every distinction is suspect. Intermediate scrutiny lets courts strike down laws resting on stereotypes about the roles of men and women while upholding some laws tied to real differences. In United States v. Virginia (1996) Justice Ginsburg wrote that the justification must be genuine, not invented after the fact, and must not rely on overbroad generalizations about the talents or preferences of men and women. Chief Justice Rehnquist concurred in the judgment; Justice Scalia dissented, defending single-sex education and the role of tradition. Justice Thomas did not take part. Intermediate scrutiny protects men as well as women: Mississippi University for Women v. Hogan (1982) struck down a nursing school's exclusion of men.
Key idea
Sex classifications get intermediate scrutiny (Craig v. Boren, 1976): an important government objective and a substantial relationship to it, sharpened in United States v. Virginia (1996) to require an "exceedingly persuasive justification". Frontiero's call for strict scrutiny drew only four votes.
Worked example: Apply the test
A state university's engineering program admits only men, saying women prefer other fields. Valid?
- A sex classification: intermediate scrutiny, with the "exceedingly persuasive justification" requirement.
- The stated reason is a generalization about women's preferences, which VMI rejects as a basis.
- Women who want the program are excluded because of their sex.
Answer: Invalid under United States v. Virginia.
Worked example: Who wins and why
A rule gives only mothers, not fathers, a state childcare allowance. A father challenges it. What tier, and why does it protect him?
- Sex classification: intermediate scrutiny.
- The clause protects any person; Craig v. Boren and Hogan both involved men.
- The state must show an important objective substantially served, not resting on stereotypes about parenting.
Answer: Intermediate scrutiny; men are protected too.
Common mistake
Thinking sex classifications get strict scrutiny. Frontiero's plurality wanted it, but drew only four votes; the standard is intermediate scrutiny, as sharpened in United States v. Virginia. Check: race → strict; sex → intermediate.