Craig v. Boren

In Craig v. Boren, the U.S. Supreme Court established a new standard of judicial review, intermediate scrutiny, for laws with gender-based classifications.

The 1976 decision involved an Oklahoma law that prohibited the sale of beer with 3.2% alcohol content to males under age 21. Females who were under 21 but over 18 could buy the beer. Craig v. Boren ruled that the gender classification violated the Equal Protection Clause of the Constitution.

Intermediate Scrutiny: A New Standard

The case is significant to feminism because of the intermediate scrutiny standard. Prior to Craig v. Boren there had been much debate about whether sex-based classifications, or gender classifications, were subject to strict scrutiny or mere rational basis review.

If gender became subject to strict scrutiny, like race-based classifications, then laws with gender classifications would have to be narrowly tailored to achieve a compelling government interest. But the Supreme Court was reluctant to add gender as another suspect class, along with race and national origin. Laws that did not involve a suspect classification were subject only to rational basis review, which asks whether the law is rationally related to a legitimate government interest.

Three Tiers Are a Crowd?

After several cases in which the Court seemed to apply a higher scrutiny than rational basis without really calling it heightened scrutiny, Craig v. Boren finally made clear that there was a third tier. Intermediate scrutiny falls between strict scrutiny and rational basis. Intermediate scrutiny is used for sex discrimination or gender classifications. Intermediate scrutiny asks whether the law's gender classification is substantially related to an important governmental objective.

Justice William Brennan authored the opinion in Craig v. Boren. Chief Justice Warren Burger and Justice William Rehnquist wrote dissenting opinions, criticizing the Court's creation of and acknowledgement of a third tier. They remained opposed to establishing the new standard of intermediate scrutiny.