"Sex Discrimination - The Search for a Standard," by Natalie Wexler
Although hopes had been raised in Frontiero, the Supreme Court's next pronouncement regarding gender discrimination proved that it was not yet ready to embrace strict scrutiny. Instead, the Court settled on a third standard that was something of a compromise between ordinary scrutiny (the rational basis standard) and strict scrutiny. The case it chose as its vehicle was surprising. It involved nothing more substantial than the right to buy beer, and supposedly nonintoxicating beer at that. Furthermore, the victims of the discrimination were not women, but men.
The case involved two sections of an Oklahoma statute regulating the sale of beer with an alcohol content of 3.2 percent, about half the level found in ordinary beer. Women were allowed to purchase such beer at age eighteen, but men were barred from doing so until they turned twenty-one. (Neither men nor women could purchase harder liquor until they were twenty-one.) The age differential in the beer statute was a remnant of a general distinction in ages of majority for men and women that dated back to territorial days, before Oklahoma became a state. In 1972 the Oklahoma legislature, taking heed of Reed v. Reed and other equal protection decisions, had equalized the age of majority for most purposes, setting it at eighteen for both sexes. However, pressure from anti-liquor forces prevented the legislature from extending the equalization to the purchase of 3.2 percent beer.
Shortly after the legislature's action, a twenty-year-old freshman at Oklahoma State University named Mark Walker decided to challenge the beer statute in federal court as a denial of equal protection. Because the law imposed penalties on the person who sold the beer rather than on the young man who purchased it, Walker's attorney, Fred Gilbert, advised him to add a beer vendor as a co-plaintiff. Otherwise, Gilbert feared, the court might throw out the case on the ground that Walker did not have standing-that is, he was not the one who was actually injured by the statute. Walker found a licensed beer vendor, Carolyn Whitener, who shared his views on the unfairness of the state law, and added her as a plaintiff. While the case was still bogged down in pretrial hearings, Walker's twenty-first birthday came and went, making the case moot as to him. In order to circumvent that problem, an eighteen-year-old male, Curtis Craig, joined the case as a third co-plaintiff.
The initial complaint in the case, filed in December 1972, was dismissed by a district court judge the following February on the ground that the state law was "a valid exercise of the State's power pursuant to the Twenty-First Amendment of the United States Constitution," which authorizes the states to regulate commerce in liquor. Gilbert successfully appealed that decision to the circuit court and brought the case before a three-judge district court.
The case finally proceeded to trial in 1974. Gilbert, whose legal writing style favored many exclamation points and italicizations, took a somewhat muddled position on the appropriate standard of review in the district court. He alleged in his complaint that the discrimination was "arbitrary, irrational, and capricious," implying that he was invoking the rational basis test. But he also argued that the legislative distinction was based "solely upon the . . . constitutionally impermissible and inherently suspect classification of . . . biological sex and reproductive anatomy."
Instead of explaining the legislature's original intent in retaining the age-sex differential in the beer law, the state offered a traffic safety justification. Relying heavily on statistical evidence, the state argued that more males than females between the ages of eighteen and twenty-one were arrested for drunk driving and were injured or killed in traffic accidents.
The three-judge panel ruled unanimously in favor of the state. At the outset, the court noted that it faced "the recurring problem of the proper standard of review." After surveying the Supreme Court's recent pronouncements in the area, the court settled on Reed v. Reed as the applicable precedent-which the court interpreted as a rational basis test, but with the burden of proof placed on the defendant. While the state's evidence certainly was not airtight (not least because much of the data related to a period after the statute was passed), it was sufficient to prove the state's rationality. "We conclude," the court wrote, "that the classification made has a fair and substantial relation to apparent objectives of the legislation."
At this point Ruth Bader Ginsburg, who as counsel to the Women's Rights Project at the ACLU had already been in correspondence with Gilbert, stepped in to offer assistance. "Delighted to see the Supreme Court is interested in beer drinkers," she wrote to Gilbert after the Supreme Court agreed in January 1976 to hear the case. Gilbert gladly accepted the ACLU's offer to file an amicus curiae brief (filed by someone not a party to a case but interested in the legal doctrine at issue).
As in Frontiero, the question of standard of review moved to the forefront once the case reached the Supreme Court. In his jurisdictional statement-a preliminary filing arguing that the case was substantial enough to warrant Supreme Court review-Gilbert used as one of his subheadings, "The Unsettled Question of the Relevant Test." In his brief on the merits, he argued that the statute should fall even under a rational basis standard. But Gilbert also put forward a novel argument for heightened (or increased) scrutiny: if the only reason sex had not been treated with stricter scrutiny was because of "organic differences" between the sexes, then why not apply strict scrutiny in cases like this one, where the discrimination had nothing to do with those biological differences?
Ginsburg's brief for the ACLU was virtually silent on the appropriate standard of review. Instead, it focused on the argument that the Oklahoma statute reflected outdated stereotypes about the differences between men and women. But the brief did seize upon one phrase in the Supreme Court's decision the year before in Stanton v. Stanton, which had struck down an Idaho age-of-majority statute on the ground that it discriminated on the basis of sex. It was a phrase that had also been mentioned by the district court and by Gilbert in his jurisdictional statement: the statute must fall, Justice Blackmun had written for the Court in Stanton, "under any test-compelling state interest, or rational basis, or something in between." The idea of "something in between" had also been bandied about by a number of legal commentators, who argued that the Court was in effect using an intermediate standard in gender discrimination cases.
At oral argument in the Supreme Court, however, it seemed that the Court might never reach the question of discrimination because of the threshold issue of standing. Like Mark Walker before him, Curtis Craig had now turned twenty-one-a mere ten days before the October 5, 1976, oral argument-and could no longer claim to be a victim of the statute's discrimination. Anticipating this development, Gilbert had asked the Court for permission to add yet another, younger male plaintiff. The Court had denied this request, leaving the beer vendor, Carolyn Whitener, as the only plaintiff who arguably had standing.
Although Whitener had originally been recruited as a plaintiff because of doubts about Mark Walker's standing to challenge a law that penalized vendors, the Court now expressed doubts about her standing. Several justices seemed skeptical of Whitener's ability to assert the equal protection claims of eighteen-to-twenty-year-old males. Another issue that troubled the justices was the relationship between the Fourteenth Amendment's Equal Protection Clause and the Twenty-first Amendment's guarantee of state regulation of liquor: could the Twenty-first Amendment override the equal protection guarantees of the Fourteenth?
In his opinion for the Court, William J. Brennan Jr. swept aside both sets of doubts. Vendors like Whitener had been "uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function," he said. As for the Twenty-first Amendment, it was primarily aimed at interstate commerce in alcohol, not at individual rights: "[T]he Court has never recognized sufficient 'strength' in the Amendment to defeat an otherwise established claim of invidious discrimination in violation of the Equal Protection Clause."
Brennan boldly formulated the applicable standard of review as follows: "To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." The classification at issue in Craig, he concluded, did not pass this test. The previous cases Brennan cited included both Reed v. Reed and Frontiero v. Richardson, and he noted that the district court in this case had recognized that Reed was controlling. This standard, Brennan seemed to be saying, was nothing new.
In fact-as various concurring and dissenting opinions stated explicitly-the Craig standard was something quite new. At first glance, it seemed that its most innovative element was the requirement that a governmental objective be "important"-apparently a compromise between the strict scrutiny standard of "compelling" and the rational basis one of "legitimate"-and beyond mere "administrative convenience." But since a state could frequently come up with an "important" objective (as Oklahoma had in this instance with its rationale of traffic safety), the significance of that aspect of Brennan's formulation was unclear.
More crucial, it seemed, was the Court's demand that the means employed by the state be "substantially related" to the achievement of the objective. But this part of the standard was, on its face, supported by rational-basis precedent. The word "substantial" had first appeared in a much-cited 1920 Supreme Court case called Royster Guano v. Virginia, which held that a classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation." The Court in Reed had in fact quoted this "fair and substantial" language in support of its decision. But most courts that cited Royster Guano-including the district court in Craig-did so in the course of denying, rather than allowing, an equal protection claim.
It was only when the Craig standard was placed in context that its novelty was truly apparent. As numerous commentators and lower courts observed, the Court had clearly been treating gender differently from other "non-suspect" classifications such as citizenship or income, which Brennan's linkage of his standard to "classifications by gender" seemed to acknowledge. Also significant was Brennan's use of the words "important" and "substantially related," rather than "legitimate" and "rationally related," without any tempering by a phrase such as "not arbitrary." And when it came to applying the standard, the Court's analysis was clearly more searching than traditional rational basis review.
Accepting for purposes of discussion that the state's objective was the clearly important one of traffic safety, the Court went on to subject the state's statistical evidence to rigorous examination. Even the most persuasive of the statistical surveys showed only that .18 percent of females and 2 percent of males in the eighteen-to-twenty age group had been arrested for alcohol-related driving offenses. "Certainly," Brennan wrote, "if maleness is to serve as a proxy for drinking and driving, a correlation of 2% must be considered an unduly tenuous ‘fit.'" It was unfair to punish the 98 percent of the young men who did not get arrested for the sins of the 2 percent who did. (And the Court did not comment on the unfairness of allowing beer to be purchased by the .18 percent of young women who get arrested, the same logic applies.) In any event, the state's traffic safety justification was seriously undercut by the fact that the statute barred young men from purchasing 3.2 percent beer but not from consuming it. In sum, "the relationship between gender and traffic safety becomes far too tenuous to satisfy Reed's requirement that the gender-based difference be substantially related to achievement of the statutory objective."
Brennan's opinion was joined by four other justices, but the case nevertheless spawned a multiplicity of opinions: in addition to the majority opinion, there were several concurrences and two dissents. Most of these opinions at least implied that the Court had crafted a new, intermediate equal protection standard for gender discrimination cases. Some stated it explicitly.
Justice Lewis F. Powell Jr.'s concurring opinion endorsed Reed as the relevant precedent but criticized what he characterized as the majority's broad reading of that opinion. "As has been true of Reed and its progeny," he wrote, "our decision today will be viewed by some as a ‘middle-tier' approach. While I would not endorse that characterization and would not welcome a further subdividing of equal protection analysis, candor compels the recognition that the relatively deferential ‘rational basis' standard of review normally applied takes on a sharper focus when we address a gender-based classification."
Justice John Paul Stevens also took issue with the Court's implication that a third equal protection standard now existed, but he went beyond that to declare that even a double standard was objectionable. "There is only one Equal Protection Clause," he wrote. Although the classification in this case was not totally irrational, it was hard for him to believe that traffic safety was the state's true objective. And since the state's evidence showed that only about 2 percent of young men had violated its alcoholic beverage laws, imposing sanctions on the remaining 98 percent was impossible to justify. Most likely, Stevens concluded, the statute was simply the product of stereotypical assumptions about the relative maturity of young men and women.
Justices Harry A. Blackmun and Potter Stewart's concurrences were brief. Blackmun's consisted of one sentence disagreeing with the Court's discussion of the Twenty-first Amendment, but signing on to the rest. Stewart was the only member of the Court who believed that the statute was unconstitutional because it was totally irrational.
Chief Justice Warren E. Burger wrote a brief dissent focusing primarily on the question of standing. There was no precedent, he argued, that would allow Carolyn Whitener, "a saloonkeeper," to assert the constitutional rights of her customers. Justice William H. Rehnquist's dissent was lengthier and more vehement.
Rehnquist first assailed the idea that men, as a class, were entitled to any form of heightened scrutiny. The Court had not suggested that the men in this case were the victims of "a history or pattern of past discrimination," and therefore in need of special protection from the Court. Rehnquist went on to accuse the majority of formulating its new equal protection standard "out of thin air." Its wording, he argued, was so vague as to invite judges to insert their own subjective views into the decision-making process: "How is this Court to divine what objectives are important? How is it to determine whether a particular law is ‘substantially' related to the achievement of such objective, rather than related in some other way to its achievement?" The only redeeming feature of the Court's opinion, according to Rehnquist, was that it signaled a retreat from the plurality opinion in Frontiero, in which four justices had endorsed strict scrutiny for gender discrimination claims.
If Brennan had hoped to pass off the Craig v. Boren test as simply a reiteration of existing precedent, his effort was a dismal failure. The cat was out of the bag: a new equal protection standard had been born. The intermediate, or middle-tier, test was a compromise, and-as often happens with compromises-it left many dissatisfied. Surveying the plethora of concurring and dissenting opinions in Craig and other contemporaneous equal protection cases, one commentator wrote, "Surely we are near the point of maximum incoherence of equal protection doctrine." Another faulted the Court for failing "to articulate a decisionmaking process capable of consistent application."
But, whatever its faults, the Craig standard proved enduring. It has been cited routinely in constitutional sex discrimination cases ever since.