The Origins of the Intermediate Scrutiny Test for Sex Classifications
 and the Proposed Equal Rights Amendment


For over one hundred years after its adoption, the Equal Protection Clause was never used by the Supreme Court to invalidate a gender-based classification.  In 1873, for example, the court upheld an Illinois law prohibiting women from practicing law.  In a often-cited concurring opinion in the case, Bradwell v State, Justice Bradley declared, "Man is, or should be, women's protector and defender...The paramount destiny and mission of women is to fulfill the noble and benign offices of wife and mother.  This is the law of the Creator."  In 1875, in Minor v Happersett, the Court upheld state laws which restricted the vote to men, a decision which was the law of the land until the ratification of the 19th Amendment forty-five years later.

Myra Bradwell, who was denied admission to the Illinois bar and sued.

In the early 1900s, the Court saw itself as the benevolent protector of women.  For example, it upheld maximum hour laws protecting women (Muller v Oregon, 1908), while striking down similar laws if they also applied to men.  Even into the mid-twentieth century, challenges to gender classifications were consistently rebuffed.  In 1948, in Goesaert v Cleary, the Court upheld a state law that prohibited a woman from being licensed at a bartender unless the tavern owner was her husband or father.  (Male bartenders, the Court reasoned, would be better able to preserve order in a bar.)  As late as 1961, in Hoyt v Florida, the Court sustained an automatic exemption from jury duty for women, noting "The woman is still regarded as the center of home and family life."

The first successful challenge to a sex classification came in 1971, in Reed v Reed.  The Court struck down an Idaho law designating the male offspring as the adminstrator of the estate when none is specified in the will.  The Court concluded that the law lacked a rational basis.  Two years later, in Frontiero v Richardson, a regulation allowing male members of the military to automatically claim their spouses as dependents, but requiring female members of the military to prove the dependency of their spouses was struck down.  Four members of the Frontiero Court applied strict scrutiny, but other justices rejected that approach, arguing that the pendency of the Equal Rights Amendment was a factor in their decision.  It being widely assumed that the effect of the ERA would be to compel application of a strict scrutiny test to sex classifications, several Court members suggested the appropriateness of waiting for the constitutional amendment process to work its course.  Ultimately, the ERA fell three states short of ratification, largely over such concerns as mixed sex bathrooms and women being put in combat positions.

The Court finally settled on an intermediate scrutiny (important state interest and the classification substantially serves the state's goal) approach in Craig v Boren, invalidating a law that banned the sale of 3.2% beer to 18 to 20-year-old males, while allowing purchase by females of the same age.  The same test resulted in a decision in 1981 upholding a California law that allowed males, but not females, to be charged with statutory rape (Michael M. v. Superior Court).  Taken together, the two cases suggest the unpredictability of the intermediate scrutiny test used by the Court.  Whereas strict scrutiny almost always results in a law's invalidation, and the rational basis test almost always results in a law being upheld, the result of applying the intermediate scrutiny test very much depends on the values and perspectives of the judges applying it.


Should Gender Classifications Be Subjected to Heightened Scrutiny?
For many decades, gender classifications received only rational basis scrutiny under the Equal Protection Clause and some justices (Scalia and Thomas, e.g.) still believe that should be the case.  Unlike race, real differences between the sexes (relating to pregnancy, nursing, life expectancy, etc) might sometimes justify different treatment under the law.  In addition, gender classifications raise some--but not all--of the concerns that the Court used to justify applying strict scrutiny to classifications based on race and national origin:
1.  Women, historically, have been the victims of discrimination (e.g., denied the right to vote).
2.  Sex is (barring extreme measures) an immutable characteristic.
3.  Women, historically, have been underrepresented in political bodies.  (But that is changing and there are now more female voters than male voters.)
4.  While sexual stereotyping exists, women are not a discrete an insular minority in the sense that racial and ethnic groups often have been.  In fact, females are not a minority at all.


Craig v. Boren (1976)
Michael M. v. Superior Court (1981)


1. Did the law invalidated in Reed v. Reed really lack a rational basis, as rational basis has been defined by the Court in other contexts?
2. What are the arguments for and against applying heightened judicial scrutiny to classifications disadvantaging women? To classifications disadvantaging men?
3.  What are some of the real differences between men and women that may legitimately be the basis for a legislative classification based on sex?
4.  Should the ERA have been adopted?  What gender-based classifications would become unconstitutional if it had been adopted?  Would a ban on women in combat positions be unconstitutional?  Would bathrooms segregated by sex be unconstitutional?  Would it be unconstitutional to punish female topless bathers, but not male topless bathers?
5.  How do you explain the fact that many polls in the 1970s showed greater support for the ERA among males than among females?
6.  Is the Court's approach of using intermediate scrutiny to review gender classifications a sound one?  What problems to you see with the Court's approach?
7.  What options were open to the Oklahoma legislature after the Court invalidated the sex classification in its beer law?
7.  Do you agree that the sex classification in California's statutory rape law challenged in Michael M. was supported by an important state interest and the the classification was substantially related to that interest?
8.  Does a state disability insurance plan that excludes coverage for the costs of pregancy, while covering most other medical costs, make a gender-based classification that justifies intermediate scrutiny?  See Gelduigig v Aiello (1974), a 6 to 3 decision holding that the law classifies medical procedures, not persons based on sex, and therefore is subject only to rational basis review.
9.  Does a law that disproportionately disadvantages women, such as a state law that gives a hiring preference for state jobs to military veterans (who tend to be disproportionately male) justify the application of intermediate scrutiny?  See Personnel Administrator of Massachusetts v Feeney (1979), where the Court held that in the absence of a gender classification in the statute, or a showing of intentional discrimination based on gender, only a rational basis test applies.

Proposed E. R. A. (1972)
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3.  This amendment shall take effect two years after the date of ratification.

The statute passed by Congress in March, 1972 proposing the amendment provided that ratifications must occur within seven years.  Thirty-five states out of the thirty-eight needed had ratified by 1978.  Congress extended the deadline for ratification to June 30, 1982, but still the amendment failed to achieve the necessary thirty-eight ratifications.

Map showing 35 states ratifying E.R.A. (in blue).

Chronology of the E. R. A. 1923-1996

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