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% ("non-intoxicating") alcohol content to males under age 21 while permitting the sale of such low-alcohol beer to females over the age of 18. Craig v. Boren ruled that the gender classification violated the Equal Protection Clause of the Constitution. Curtis Craig was the plaintiff, a resident of Oklahoma who was over the age of 18 but under 21 at the time the suit was filed. David Boren was the defendant, who was governor of Oklahoma at the time the case was filed. Craig sued Boren in a federal district court, alleging that the law violated the Equal Protection Clause.

The district court had upheld the state statute, finding evidence that such gender-based discrimination was justified because of gender-based differences in arrests and traffic injuries caused by males and females ages 18 to 20. Thus, the court held that there was justification on the basis of safety for discrimination.

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Sex Discrimination and the U.S. Constitution

By Jone Johnson Lewis

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 scrutinies, 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, with Justices White, Marshall, Powell and Stevens concurring, and Blackmun joining in most of the opinion. They found that the state had not shown a substantial connection between the statute and the benefits alleged and that statistics were insufficient to establish that connection. Thus, the state had not shown that gender discrimination substantially served a government purpose (in this case, safety). Blackmun's concurring opinion argued that the higher, strict scrutiny, a standard was met.

Chief Justice Warren Burger and Justice William Rehnquist wrote dissenting opinions, criticizing the Court's creation of an acknowledgment of a third tier, and arguing that the law could stand on the "rational basis" argument. They remained opposed to establishing the new standard of intermediate scrutiny. Rehnquist's dissent argued that a liquor vendor who had joined the suit (and the majority opinion accepted such standing) had no constitutional standing as his own constitutional rights were not threatened.
Edited and with additions by 

Jone Johnson Lewis