Craig v. Boren

Explanation and Analysis of the Document

On its face, Craig v. Boren seems an unlikely case to cite for its important role in Supreme Court—and U.S.—history. As Ruth Bader Ginsburg (later a Supreme Court justice herself but at the time a litigator for the Women's Rights Project of the American Civil Liberties Union) remarked tongue in cheek to appellants' counsel, “Delighted to see the Supreme Court is interested in beer drinkers.” Craig concerned an Oklahoma statute permitting eighteen-year-old women to purchase beer with an alcohol content of 3.2% but requiring that men who wished to purchase 3.2% beer be at least twenty-one years old. Mark Walker, then an eighteen-year-old college freshman, decided to challenge the statute in court. Concerned that he might have difficulty demonstrating damages and thus obtaining standing to sue, his attorney recommended that Walker add a vendor of 3.2% beer as a plaintiff. Carolyn Whitener was accordingly added. As the case wended its way to court, Walker turned twenty-one, and a third plaintiff, then-eighteen-year-old Curtis Craig, became a third co-plaintiff.

The federal district court that tried Craig dismissed it out of hand, declaring the statute a valid exercise of Oklahoma's right under the Twenty-first Amendment to regulate commerce in alcoholic beverages. Plaintiffs then appealed to the U.S. Supreme Court. By the time the case reached the high court, however, Curtis Craig, too, had attained the age of majority, leaving Carolyn Whitener the only appellant with standing. In his opinion for the Court, Brennan addresses this oddity first, declaring that Whitener can rely upon the equal protection claims of affected eighteen- to twenty-year-old males, whose rights would be affected should her claim fail. Brennan's treatment of the state's Twenty-first Amendment argument is similarly direct: The Twenty-first Amendment, which repealed the Eighteenth Amendment and legalized the sale of alcoholic beverages, was intended to effect interstate commerce in alcohol, not individual rights.

The heart of the case, however, concerned the appropriate standard of review for determining the constitutionality, under the equal protection clause of the Fourteenth Amendment, of a state law having a disparate impact on men and women. Was gender, like income, a “non-suspect” category subject only to the so-called rational basis test, whereby the state had to show only that its statute was reasonably related to a legitimate government interest? The Oklahoma law, which the state declared protected the populace from drunk drivers, might be said to fall under this rubric. Brennan, however, did not find the state's statistics convincing: “Suffice to say that the showing offered by the appellees does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving.” While Oklahoma could demonstrate that 0.18% of females versus 2% of males aged eighteen to twenty had been arrested for alcohol-related driving offenses, what of the 98% of young men who were not guilty of such transgressions? What is more, says Brennan, ever since deciding Reed v. Reed (a decision mandating that estate executors be appointed in a gender-neutral manner) in 1971, in order to withstand an equal protection challenge, states had been required to show something more than a rational basis for non-gender-neutral laws. Here, however, “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 goes on to enunciate the standard for determining the constitutionality of sex-based classifications in state laws. Although the strict scrutiny trained on suspect classifications such as race might not be appropriate, ordinary scrutiny was not rigorous enough when applied to statutes like the one in question. Gender-specific statutes “must serve important governmental objectives and be substantially related to achievement of those objectives” in order to pass constitutional muster. This standard, he avers, is the same one pronounced in Reed. As other justices pointed out in a multiplicity of concurring opinions, this last statement was inaccurate. In fact, Brennan—perhaps influenced by the burgeoning feminist movement and the contemporaneous drive for an equal rights amendment to the Constitution—had elaborated on Reed to develop a new standard. Ever since Craig, the Court has employed Brennan's “intermediate scrutiny” test to assess government actions based on gender.