CRAIG v. BOREN 429 U.S. 190 (1976)

It is ironic that the leading modern decision setting the standard of review for claims of sex discrimination involved discrimination against men, concerning an interest of supreme triviality. Oklahoma allowed women to buy 3.2 percent beer upon reaching the age of eighteen; men, however, had to be twenty-one. A young male would-be buyer and a female beer seller challenged the law's validity. The young man became twenty-one before the Supreme Court's decision; his challenge was thus rejected for mootness. The Court held that the seller had standing to raise the young man's constitutional claims, and further held, 8–1, that the law denied equal protection of the laws. Justice william h. rehnquist dissented.

Speaking through Justice william j. brennan, the Court held that classifications based on gender were invalid unless they served "important governmental objectives" and were "substantially related to achievement of those objectives." This intermediate standard was a compromise between the two views of the majority in frontiero v. richardson (1973) as to the level of judicial scrutiny of both legislative objectives and legislative means. Under the rational basis standard of review, the objective need be only legitimate, and the means (in equal protection language, the classification) only rationally related to its achievement. At the opposite end of the continuum of standards of review, strict scrutiny demands a legislative objective that is a compelling state interest, and means that are necessary to achieving that objective. The Craig standard appears to have been deliberately designed to fall between these two levels of judicial scrutiny of legislation.

In the years since Craig, the Supreme Court has often invalidated classifications based on sex but typically has not challenged the importance of legislative objectives. Instead, the Court generally holds that a sex classification is not "substantially related" to a legislative goal. In Craig itself, the Court admitted that traffic safety, the state's objective, was important, but said maleness was an inappropriate "proxy for drinking and driving."

Justice john paul stevens, concurring, doubted the utility of multitiered levels of judicial scrutiny in equal protection cases, and commented that men, as a class, have not suffered "pervasive discrimination." The classification was objectionable, however, because it was "based on the accident of birth," and perpetuated "a stereotyped attitude" of young men and women. Because the state's traffic safety justification failed, the law was invalid.

Kenneth L. Karst
(1986)