A New Standard of Review: Craig v. Boren and Brennan’s “Heightened Scrutiny” Test in Historical Perspective JEREMY BRESSMAN* “To withstand constitutional challenge, previous cases establish that classifications by gen der must serve important governmental objectives and must be substantially related to achieve ment ofthose objectives.With this one statement, Justice William Brennan, Jr., writing for the majority in the 1976 Supreme Court case Craig v. Borenj both reversed the decision ofthe district court below and—more importantly—redefined the legal standard for equal protection in gender-discrimination cases. Brennan’s statement encapsulated decades’ worth of develop ment and decisions under the Equal Protection Clause of the Fourteenth Amendment, which bars states from denying “to any person within [their] jurisdiction the equal protection of the laws,”3 by creating what is now referred to as the “heightened scrutiny”4 standard for judging equal protection legislation. Yet Brennan’s creation of a new standard is quite striking, even when looked at in hindsight. How was Brennan able to create-this standard ofreview, and where did it come from? Was this new step taken by the Justices under equal protection adjudication a mistake, or a necessary reality ofthe period? Through a close analysis ofboth the history ofthe Equal Protection Clause in its relation to gender legislation and the history of feminism during the 1960s and 1970s, the inevitability ofBrennan’s decision becomes clear. In fact, the creation ofthe heightened scrutiny standard was an inevitable outgrowth oftwo separate, yet fundamen tally related progressions: the steps taken in the Court in its review of gender-discrimination cases in the years prior to Craig v. Borem, and the changes in society’s relation to the feminist movement in the pre-1973 and post-1973 periods. 86 JOURNAL OF SUPREME COURT HISTORY Background of Craig u. Boren In 1958, the Oklahoma legislature passed a number of statutes, among which two con tained seemingly innocuous sections. Sections 241 and 245 of Title 37 prohibited the sale of 3.2-percent beer—a type of beer that con tains approximately halfthe amount ofalcohol in regular beer—to males under twenty-one years of age, while only prohibiting the sale of the beverage to females under eighteen.5 Such an age distinction in legislation was com mon in Oklahoma; it was primarily a rem nant ofthe general age distinctions that existed prior to Oklahoma becoming a state.6 While Oklahoma began to overturn such distinctions in 1972 following the Supreme Court decision in Reed v. Reed? lobbying from anti-liquor After sixteen attorneys turned her down, grieving mother Sally Reed (right) finally persuaded Allen Derr (left) to appeal her case challenging a statute that automatically appointed her ex-husband administra tor of their deceased son’s estate. In its first ruling striking down a gender-based law under the Equal Protection Clause, the Supreme Court found in favor of Reed in 1971. parties precluded the 3.2-percent law from be ing changed.8 Two things about this law are striking. First, while a distinction in the law existed for 3.2-percent beer, generally known to be a “non-intoxicating” drink, no distinc tion existed for other types ofalcohol. Second, unlike most gender distinction legislation, the law in this case affected men more negatively than it did women.9 The original suit in the case was brought by a college student named Mark Walker against David Boren, the governor of Okla homa, soon after the legislature’s decision not to overturn sections 241 and 245. Walker’s lawyer, Fred Gilbert, advised him to add a beer vendor to the case as a second plaintiff, out of fear that the court would dismiss the case, since Walkerhad not truly been “injured” by the act; Carolyn Whitener, a beer vendor in the area, was soon added onto the case. By the time the case came to trial in late 1972, Walker had already celebrated his twenty-first birthday; since he could now legally purchase 3.2-percent beer, he no longer had standing to argue in the case. As a result, eighteen-year-old Curtis Craig was added on as a final plaintiff. No sooner than was Craig’s name...