Craig v. Boren, 429 U.S. 190 (1976), argued 5 Oct. 1976, decided 20 Dec. 1976 by vote of 7 to 2; Brennan for the Court, Blackmun, Powell, Stevens, and Stewart (as to result) concurring, Burger and Rehnquist in dissent. The Court announced for the first time that sex‐based classifications were subjected to stricter scrutiny under the Equal Protection Clause of the Fourteenth Amendment than was provided by the rational basis or “ordinary scrutiny” test. As stated by Justice William J. Brennan, the constitutional standard that would have to be met for a statute classifying by gender is that it “must serve important governmental objectives and must be substantially related to those objectives” (p. 197). This standard appeared to be somewhat less rigorous than the strict scrutiny test applied to “suspect” classifications such as race. Brennan claimed that (although the Court had never before mentioned it) this was the test that had applied to gender discrimination ever since Reed v. Reed (1971). (The period 1971–1976 coincided with a nearly successful effort at the congressional and state level to add an Equal Rights Amendment to the Constitution.)

The Oklahoma law at issue in Craig allowed females aged 18–20 to purchase beer of 3.2 % alcohol. Males could not purchase beer until age 21. The law was challenged by two underage men, Mark Walker and Curtis Craig, joined by a female beer vendor, Carolyn Whitener. By the time the case was argued at the Supreme Court, both men had turned 21, so the woman's standing proved decisive (see Standing to Sue).

Oklahoma defended the statute as a prophylactic against drunk driving, offering statistics showing that arrests of males 18–20 outnumbered those of females of similar age by a factor of nine for “drunk” driving (2 percent vs. 18 percent), by a factor of eighteen for “driving under the influence,” and by a factor of ten for public drunkenness.

Brennan ruled for the Court that, while enhancing traffic safety did demonstrate an important government interest, the statistical evidence offered by Oklahoma did not meet the other half of the test: the gender line drawn by the state did not “substantially” further the government's goal. Also, explaining that the Twenty‐first Amendment did not alter otherwise applicable equal protection standards, he rejected the state's argument that the extra legislative power secured by that amendment should cause this statute to be sustained.

Justice Harry Blackmun concurred in the result and in all of the opinion except the discussion of the Twenty‐first Amendment. Justice Lewis Powell concurred but stated that he would have preferred a rule that said gender classifications must bear a “fair and substantial relation” to the object of legislation. Justice John Paul Stevens concurred but suggested that rather than three differing degrees of equal protection scrutiny the Court should apply the rule that states must govern impartially. For him the requirement of impartiality entailed measuring the importance of the government interest, the degree to which any classification furthers that interest, and the degree of obnoxiousness of the classification. While this law did further traffic safety somewhat, and while that was an important goal, he felt that the offensiveness of a gender‐based law outweighed these two considerations here.

Justice Potter Stewart argued that the rationality test employed in Reed v. Reed still was the appropriate test for gender discrimination, but that this statute did not satisfy even that minimum standard and thus was unconstitutional.

Justice William Rehnquist dissented, objecting both to the introduction of a new level of scrutiny and to its application to male plaintiffs, since males were not in need of special solicitude from the Court. He argued that rationality was the correct test and that the statistical evidence easily satisfied that standard. Chief Justice Warren Burger expressed general agreement with Rehnquist's dissent but argued that the Court should not have taken the case, because, he said, it should never have extended standing to Whitener, a mere saloon‐keeper.

Leslie Friedman Goldstein

CRAIG V. BOREN

CRAIG V. BOREN, 429 U.S. 190 (1976), established the constitutional test for laws that discriminate on account of gender. In 1958, Oklahoma enacted a law allowing women to purchase beer containing 3.2 percent alcohol at age eighteen, while men could not do so until they reached twenty-one years of age. In 1972 Craig, a man under twenty-one years of age, and Whitener, a woman operating a bar, challenged the law in the U.S. District Court for the Western District of Oklahoma, arguing that it constituted "invidious discrimination against males eighteen to twenty years of age," thus violating the equal protection clause of the Fourteenth Amendment. The District Court upheld Oklahoma's law, triggering a Supreme Court appeal.

Previously, gender distinctions were judged by a "rational basis test," which asked whether legislative bodies had reason to believe that sex discrimination in certain instances served the public interest. But in Reed v. Reed (1971), the Court broke with a century-long trend in Fourteenth Amendment interpretation, invalidating a Utah law that discriminated on account of sex, because it found that "rational basis" was not enough to sustain the discrimination. The Reed opinion appeared to signal a shift toward the application of the "strict scrutiny" test for racial classifications to gender classifications. Frontiero v. Richardson (1973) revisited the issues presented by Reed v. Reed, but did not clarify whether "strict scrutiny" would apply to gender discriminations. In Craig v. Boren the Court finally established which test would apply in gender classifications.

Oklahoma argued that the statute improved public safety, pointing to statistical evidence showing that men were slightly more likely to commit alcohol-related traffic offenses than women. The District Court, citing Reed v. Reed, had found that Oklahoma's statistical evidence endorsed the gender distinction, supporting the statutory goal of increased traffic safety. The Supreme Court disagreed, finding that evidence to be exceptionally thin, and offered "only a weak answer to the equal protection question presented here." Justice William Brennan, writing for the 7 to 2 Court majority, emphasized that evidence used to defend discriminations would have to be compelling. Striking down Oklahoma's statute, Brennan stated that the "relationship between gender and traffic safety becomes far too tenuous to satisfy Reed v. Reed's requirement that the gender-based difference be substantially related to achievement of the statutory objective." Craig v. Boren established that the Court would apply neither "rational basis" nor "strict scrutiny" tests, relying instead on "heightened" or "intermediate" scrutiny of gender-based discriminations.

R. VolneyRiser

See alsoDiscrimination: Sex .